Prominent British jurist sounds a grim warning about how to create a Police state but our Chief Justice is coy

Political commentators from the left and right sides of the political divide are questioning the powers being exercised by police during the nation-wide “lockdown”.

The Asian Invasion 2019  blog draws attention to the warning sounded by former UK Supreme Court Justice Jonathan Sumption when he challenged Covid-19 actions by British Police, describing them as an “hysterical slide into a police state”  and labelleing the situation as “collective hysteria”.

He said:

The real problem is that when human societies lose their freedom, it’s not usually because tyrants have taken it away. It’s usually because people willingly surrender their freedom in return for protection against some external threat. And the threat is usually a real threat but usually exaggerated. 


Yet in some parts of the country, the police have been trying to stop people from doing things like travelling to take exercise in the open country, which are not contrary to the regulations, simply because ministers have said that they would prefer us not to. 

Lord Sumption cautioned against blindingly accepting what scientists say, too:

There’s no particular reason why the scientific nature of the problem should mean we have to resign our liberty into the hands of scientists. 

Other bloggers have been riled by the Police chief’s refusal  to explain to a Parliamentary committee the rules being appled to keep citizens under virtual home detention.

Malcolm Harbrow, on No Right Turn, heads his post We have a right to know the rules we are expected to obey

He notes that outgoing Police Commissioner Mike Bush appeared before the Epidemic Response Committee yesterday and was asked for the rules police are using to enforce the lockdown.

He declined:

Bush was questioned about who made the guidelines and exactly when people would find themselves on the wrong side of the police.

“Absolutely agree – the country needs clarity,” Bush said.

Opposition leader Simon Bridges said it felt a bit like the “undies, undies, togs” television ad as people didn’t know how far they could go before it was inappropriate.

Bridges asked if the guidelines would be made publically available.

Bush replied that it was a “good idea” and said he’d take it away as an action point and consult Crown Law for advice.

That’s not good enough, Harbrow insists.

We have a right to know the rules we are expected to obey – otherwise how can we be expected to obey them?

By keeping them secret,

 … the police seem to be trying their hardest to give themselves space for the arbitrary exercise of power. And that is not going to encourage people to do the right thing.

Harbrow four days ago  lodged an Official Information Act request for those rules.

He hadn’t had his request acknowledged at the time he posted his report on this issue (most agencies respond automatically, with a manual followup within a day).

David Farrar, at Kiwiblog, has headed his post Don’t ask nicely – demand it

He references a Newsroom report:

The Epidemic Response Committee, chaired by Opposition leader Simon Bridges, was set up to provide scrutiny of the Government’s actions and hold agencies to account for the way in which they exercise their far-reaching powers.

It is one of the few avenues for democratic oversight in Aotearoa at present and is accordingly extremely important. 

Today, the committee examined how the police are interpreting and applying the emergency powers they have been given.

Professor John Hopkins of the University of Canterbury, a specialist in disaster law, is providing expert advice to the committee and set the scene by outlining the laws that give the police and other agencies the emergency powers they are using.

Hopkins highlighted a key concern of lawyers who are observing how events are unfolding during the lockdown: the wide discretion of police officers on the ground. …

Bush said police were receiving advice from Crown Law as to how to interpret the law. That is to be expected and it is correct that the police are asking for legal advice from Crown Law. But that legal advice should also be publicly released. Bush did not commit to that this morning but said he would seek advice from Crown Law on whether the advice should be made public.

There are no signs the Police are going to release it or their internal guidelines.

The special committee has been given the powers of the Privileges Committee, Farrar points out.

If the Crown Law advice and the guidelines are not provided by 5 pm today, the committee should use its powers under Standing Orders to demand they be produced.

Newsroom went on:

The most concerning part of the committee session was when ACT MP David Seymour asked Bush what the legal basis was for the commissioner’s statement that people could not leave their suburbs.

But Farrar’s suburb has no dairy, no supermarket and no pharmacy.  – so if the Commissioner is correct, “we’re stuffed”.

The Newsroom report continued:

What Kiwis require is clear and specific information about what we can and cannot do. And we also need to be very clear that this information is based on specific laws.

It was accordingly extremely disappointing that Bush replied to Seymour by thanking him for his advice and saying “I’ll certainly give it due consideration.” Those watching were left with the clear impression that Bush would give Seymour’s views no consideration at all.

In fact, Seymour was doing exactly what the country wants and needs from the committee at this time: seeking to hold the police to account. 

Again the Police have a very clear job – to enforce the law, Farrar fulminates.

There are several reports of them going beyond this.

He cites one person who was told by the Police they are not allowed to be swimming at the beach – although they live by the beach.

Farrar reasons that unless Cabinet has passed a regulation or law saying you can’t go in the water, then the Police should be restricted to ensuring people are not congregating and so on.

Seymour later issued a press statement:

“Police have an opportunity to encourage respect for the law by being open and transparent about how its officers will use their new powers”, says ACT Leader David Seymour.

“Police Commissioner Mike Bush told the Epidemic Response Committee this morning he had received advice from Crown Law about how police officers should use their new powers. This advice should be released for three reasons.

“First, Police have extraordinary powers at present and a large degree of discretion in how officers use them.

“Second, there’s been a level of confusion about what New Zealanders can and can’t do during the lockdown.

“Finally, the Police Commissioner’s recent language has created some concern about whether the rule of law is being upheld.”

Seymour illustrated this third point with three remarks he attributed to Bush –

  • Regarding the Police monitoring of New Zealanders, “We may even have a little drive with you to see where you’re going”;
  • Regarding people who don’t comply with the rules, they’ll be “having a little trip to our place”, and
  • “…it’s the smiling face of police until it needs to be something else”.

Seymour says:

“These kinds of menacing euphemisms will do nothing to encourage respect for the law.

“The rule of law requires that rules are clear and publicly accessible. That is not the case at present.

“Police can’t demand respect from the public but must earn it. Police have an opportunity to encourage public respect for the law by being open and transparent and releasing Crown Law advice.

“New Zealanders need to know how Police’s extraordinary new powers are being exercised.”

The Asian Invasion 2019 blog laments the absence of a voice like Lord Sumption’s in an item headed Where Oh Where Is Our Chief Justice Winkelmann In This Time Of Crisis?

New Zealand is in a State of Emergency stretched  now into its second week, the author points out.

Regular residents are on home detention for at least a month and are prohibited from working or saving their now failing businesses.

Parliament effectively is not operating while community vigilante groups (with Police support) set up roadblocks on public highways and take the temperatures of the people stopped.

So what of and where are our leading legal minds?

The blogger is disappointed that Chief Justice Helen Winkelmann of the Supreme Court (our highest) gets herself involved in all sorts of activist causes in the pursuit of justice, liberty and freedoms but has made scant comment except when explaining why access to the courts have been tightened. 

 The courts and justice system will continue to operate during level 4 of the Government’s Covid-19 alert system, with Chief Justice Dame Helen Winkelmann saying the rule of law and civil rights and liberties need be upheld during the global pandemic.

In a press statement, she said courts are an essential service.

 New Zealand courts must continue to uphold the rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld.

But outside the closed courtrooms there is anything but a rule of law and rights and freedoms under the Bill of Rights in play, the blogger laments.

This has resulted in a complete silence from a usually yappy Chief Justice who is usually rather outspoken on such other important matters of state that many may view as an over-reach into judicial activism.

Hone Harawira is a law unto himself, as are all the barricades, blockades and persons attempting to keep others from New Zealand from accessing freely public roads and highways.

We have New Zealand Police now stopping people for walking too closely, closed beaches because heaven forbid people may actually sit on one in their bubbles and more than the 2m’s away from others in theirs.

Slowly but surely all popular walking routes are being closed down or monitored…

Asian Invasion 2019 calls on the “activist Supreme Court leader” to start speaking out about the nonsensical position New Zealand finds itself in where we are defending a worst case scenario that  there is 27,600 dead?

Even if the worst modelling outcome was  to happen

  … does this loss of life warrant very very conservative estimates of a $50b hole in the nation’s economy and far more than 27,600 lives financially, mentally and emotionally, ruined, affected and in tatters because of this home detention and closure of the nations borders for an extended period?

 At $1.8m a life that is an incredible price that other people right now are paying and giving up liberties, livelihoods and their personal security and everything else her beloved legal system upholds?

That’s not an act of love, the blogger concludes –  it’s an act of complete lunacy.

2 thoughts on “Prominent British jurist sounds a grim warning about how to create a Police state but our Chief Justice is coy

  1. The NZ Treasury puts the value of a statistical life at just under $5m.

    So the govt is spending less per life saved on Covid 19 than it does with (e.g.) road safety.

    But the quoted comment is fatally flawed in that it counts only the cost in the Govt accounts. The cost to all Kiwis of the pandemic, with only minimum action taken to contain it, would be much higher.

    Keep safe all of you.


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