Ministers in Boris Johnson’s government were advised by their own legal teams about the risks of imposing Covid-19 lockdowns without parliamentary votes but chose to override these warnings, according to legal documents disclosed following a freedom of information battle.
In early March 2020, as the coronavirus began spreading rapidly across the United Kingdom, government lawyers from the Cabinet Office and the Department of Health and Social Care provided guidance on the use of emergency powers. The advice indicated that ministers could have utilized the Civil Contingencies Act 2004, which grants broad authority during national emergencies but requires primary legislation subject to parliamentary approval. Under this Act, any emergency legislation would last only seven days without parliamentary consent and would need to be renewed by MPs every 30 days.
Despite this, the government opted instead to impose lockdown restrictions using powers under the Public Health Act 1984. This approach allowed the government to implement regulations without requiring parliamentary votes or scrutiny prior to enforcement. The decision to bypass routine parliamentary approval sparked significant controversy and has been criticized by legal figures, including former Supreme Court Justice Lord Sumption, who described the lack of parliamentary oversight as “beyond the pale.”
The documents revealing this advice were released after a lengthy legal challenge initiated by Ben Kingsley, legal director of the campaign group UsForThem. Mr. Kingsley filed a freedom of information request in December 2023 to access the legal advice provided to ministers ahead of the initial national lockdown. The Cabinet Office resisted the request for over two years before a tribunal ruled in favor of disclosure, citing public interest in understanding the constitutional implications of the lockdown measures.
Mr. Kingsley argued that the imposition of the lockdown restrictions amounted to one of the most significant interventions on personal freedoms in recent history and involved substantial financial costs. He also contended that statements made by former Cabinet minister Michael Gove during the Covid Inquiry had effectively waived legal privilege over the documents.
Lord Sumption further criticized the government’s approach, noting that parliamentary scrutiny was effectively eliminated as ministers frequently enacted lockdown regulations first and sought approval only after changes had been made or measures revoked. “They didn’t want much parliamentary scrutiny,” he said.
The government declined to comment on the release of the legal advice or the criticisms surrounding the lockdown decision-making process.