This week Simon got really stroppy and threatened to summons the Solicitor General to the select committee and require him to hand over legal advice that the Government has received concerning the Health Act Covid 19 notices.
I previously wrote this post about Bridges’s behaviour. Short version, it was a stunt, that there is no way any lawyer would voluntarily divulge this sort of information and Bridges ought to know this. I also expressed the tentative view that the legal basis for the notice itself was not secure. Current litigation will provide an interesting challenge to the notice, at least the first one. I am not sure that the Health Act powers were optimised for an all country all areas prohibition.
Simon went on the offensive. Surely it was more important to dot every i and cross every t than to save the country from a pandemic that could have caused the deaths of tens of thousands of kiwis?
This tweet I thought expressed things perfectly.
Some independent commentators/right wing spin doctors thought otherwise.
They would have us believe that instead of using the extraordinary legislative powers the Government currently has to do pretty well whatever it wants the Government would instead engage in activity of dubious legality and risk being found out by not following legal advice. I mean really?
And it is a bit bizarre that the best the opposition and their cheerleaders can do is argue about legal niceities.
I mean have a look at the current position and think of how six weeks ago it could have developed.
And the debate about getting the nicieties of the law perfect deserves this response.
David Parker, who is one of the Government’s seriously capable ministers, gave this rather awkward Facebook live broadcast to rubbish the claim. He is not a social media native. His speech was not enthralling but its content was important and directly on point. What he lacked in pizzazz he more than made up in content.
Following are the essential passages.
On the attacks by Bridges and others he said:
… the tone of some of those attacks has the potential, and is sometimes intended, to undermine public confidence in the measures that we have all taken to stamp out Covid-19. Those measure are vital to saving many lives and important for our economy, but ultimately rely mainly on voluntary compliance and trust in the Police powers to enforce significant breaches I feel it is proper for me as Attorney-General to make these comments. More so, because we have seen in other countries the impact of public confidence being undermined. I don’t want to see that happen.
On steps taken to date he said:
There is no vaccine, there is no cure, and the health advice was clear. If we wanted to avoid the awful loss of life we saw unfolding overseas, and to prevent our health system being overwhelmed, we should wash our hands, practice good hygiene but most of all we had to keep physically distant from one another.
The measures we took put the most significant restrictions on New Zealanders’ movements in modern history and closed our borders to overseas travellers in an unprecedented way. Yet together New Zealanders embraced the challenge and as a nation we’ve achieved an extraordinary feat, though we mourn the loss of 21 loved ones.
Our goal of stamping out the virus within our shores has seen the number of new cases dwindle to less than a handful. We had feared for our hospital system. As of yesterday just two Covid patients were in hospital and none was in intensive care. Looking overseas we can see that together we have saved thousands of lives.
He confidently asserted that the enforcement powers were legally based.
Let me say it again, as I have previously, that on the advice we have received from Crown Law there is no gap in the legality of the powers of enforcement under levels 3 and 4.
This issue is the subject of judicial determination and that will be resolved soon. The courts are where – quite rightly – disputes will be determined.
In relation to Simon Bridges’ privilege stunt he said this:
I … want to highlight the dangerous route the Opposition is taking in targeting public servants. By summonsing to the Epidemic Response Committee the Solicitor General, the Police Commissioner and the Director-General of Health (when they would no doubt have agreed to a simple request to appear) in order to attempt to force the disclosure of privileged legal advice. By doing this the Committee is attacking not just fair process but the privileges of the Court. Legal privilege is not Parliament’s. Parliamentary has its own parliamentary privilege, and it is not for the Courts to remove that. Legal privilege is grounded in the common law. It is the Courts not Parliament that have care of legal privilege. We must both make efforts not to intrude on each other’s privileges.
The current attack on that is an attack on comity – the constitutional separation of powers – between Parliament and the courts. That constitutional outrage is made worse in my view because it comes at a time when the Crown is facing legal action over the lockdown laws. I should put on record that the Chair of the committee The Honourable Simon Bridges was offered a confidential briefing on the advice and declined. [Own emphasis]
On the legality of the Director General’s orders he said this:
… at a high level the components which the government points to for the legality of the s 70 orders are: The necessary preconditions (Ministerial authorisation, state of emergency, or epidemic notice) were established at the time each of the orders were made (as stated at the start of each order). The orders were made by authorised medical officers of health, exercising their discretion personally and based on their expert assessments as to the measures necessary to prevent the outbreak and spread of COVID-19. Those orders were explicitly made for that purpose.
Relevant public law considerations, including the public health assessments and analysis, were taken into account by the decision-makers before the s 70 powers were exercised.
There has been some debate as to whether the Director-General could legitimately isolate or quarantine the entire nation under s 70(1)(f) of the Health Act. I consider that subsection is apt to cover a direction to all New Zealanders for isolation and quarantine, with exceptions as mentioned and is not limited to use only in relation to specified individuals. The provision is that persons can be isolated or quarantined (with no statutory pre-condition that they may have or carry the disease), so there is no stretch of language; and this is entirely consistent with the purpose of these powers – which is to prevent the outbreak or spread of infectious disease.
In relation to Bill of Rights Act considerations he said:
Isolation and quarantine requirements, the general prohibition of outdoor public congregation and restricted access to premises, are all measures that limit our rights to freedom of movement, association and assembly. To be lawful, they must be reasonable limits that are demonstrably justified in a free and democratic society. This means the measures must serve a sufficiently important objective, and be proportionate (in that they are rationally connected to the purpose, limit the rights no more than is reasonably necessary, and are in due proportion to the importance of the objective).
As I said earlier, there is no vaccine, no cure for this disease and the medical advice self-evidently based on real and recent overseas experience is that left unchecked the disease would cause the death of thousands of New Zealanders and cause serious economic harm.
The objective of the s 70 orders is legitimate and of significant public importance – preventing the spread of Covid-19, eradicating the disease, protecting public health and saving lives, and ensuring the sustainability of our health system. Given the public health assessment of risks to New Zealand and need for strict compliance to control the spread, I considered and still consider the measures imposed are a necessary and proportionate response. Preventing the spread of the virus could not be achieved in a less liberty-restricting way, acknowledging that the restrictions have been loosened and tailored as time has passed to reflect the nature and stage of the risk. I am mindful also that there have always been exceptions and exclusions available.
In relation to legal professional privilege he said:
The purpose of legal professional privilege is to enable legal advice to be sought and given in confidence. The basic principles arise from the public interest requiring full and frank exchange of confidence between solicitor and client to enable the client to receive necessary legal advice. It is a necessary corollary to the right of any person to obtain skilled advice about the law. People must be able to consult their lawyers in absolute confidence, as otherwise they might hold back information, in fear it may afterwards be disclosed and used to their prejudice. This is why the House of Lords has described legal professional privilege as much more than an ordinary rule of evidence; it is a fundamental condition on which the administration of justice as a whole rests.
…
So, given that there’s another institution in place that is going to examine the lockdown rules’ legality (the courts), and the institutional value in enabling the crown to receive full and frank legal advice, it probably would be best if the Epidemic Response Committee backed off here. It probably doesn’t need to inquire into this issue, and by doing so it may well do longer term harm to our processes of government.”
Of course legal professional privilege can be waived. On this Parker noted that this had occurred in the past but then said this:
This Select Committee is purporting to take power to themselves to waive privilege. (The committee I would add was set up with the leader of the Opposition as its chair and with a majority of Opposition MPs in a signal by the Government of its willingness to allow scrutiny at a time the House could not sit.)
We have been more open than many countries in this regard and this reflects well on our democracy.
Why did it just target the Crown? Imagine if the plaintiff in the habeas corpus case or other applicants were forced to disclose their legal advice.
Where there is litigation on foot, everyone, including the Government, must be entitled to retain their privilege and defend themselves in Court without any risk of prejudice arising by way of disclosure of privileged communications.
He also referred to a passage from the bible on Parliamentary Practice, McGee’s Parliamentary Practice in New Zealand where it says:
the House has acknowledged that a legal opinion is the property of the person who commissioned it, and that a select committee cannot expect the opinion to be furnished to it without the consent of the owner”.
And Parker wants the Privileges Committee to look at the issue:
In my opinion the current effort to turnover centuries of legal principle is not just unprincipled but may in fact be beyond the powers of the Select Committee. An important matter of comity with the courts, and a matter of constitutional principle is raised. I will be asking the Speaker of the House to refer the matter to the privileges committee to consider.
He also said that he was “not sure that even Parliament has the jurisdiction to do what the Select Committee is seeking to do.”
His concluding comment on the speculation that the Government had been told what what it was doing was illegal:
… recent speculation that our legal advice throws doubt on the legal basis is wrong. It appears to be based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers.”
The whole episode resembled a learned professor lecturing a first year law student on why his superficial and maliciously motivated proposition was wrong. Take that Bridges.
Next week will be interesting. I am pretty confident Mallard would consider the request positively. The Privileges Committee would then have to gather. And as I noted previously it appears that Mallard has to sign any summons. He could just pocket veto the draft.
This whole event is concerning. In the United States of America constitutional norms are pushed to breaking point for political benefit. And a deeply compromised Supreme Court can be relied on to tilt the playing field in favour of its masters.
Which is why constitutional principles are so important. And why it is appalling that Bridges is willing to trash established notions such as legal professional privilege for political points.
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