A question of freedom

The Government of Jersey has brought forth a further proposed extension of the Covid legislation, to have effect until August 2022. This will allow the government to roll-over the emergency legislation it has imposed since March 2020 for almost another year. 

The legislation that underpins all the Covid measures has already been extended once to April 2022. On that occasion there was no debate and not a single member of the States Assembly had any questions or comment on these measures, which have now affected all our lives for more than 18 months. For the avoidance of doubt these powers include: 

  • Power to force individuals, families and our community into isolation/house-arrest;
  • Powers of entry, search, removal and detention; 
  • Powers to regulate where we can be, with whom and in what numbers; 
  • Powers to regulate who we can have in our homes; 
  • Powers to vary the regular functioning of the courts including suspension of trial by jury; 
  • Powers to decide which businesses are ‘essential’, which are not and to shut and place restrictions on their opening; 
  • Powers to shut schools and day-care; and 
  • Powers to restrict attendance at weddings, funerals and other gatherings. 

These powers are often given to a single minister and are not subject to the requirement of any debate, approval or amendment by the States Assembly. 

The Government has stated its strategic decision is to “limit its access to powers that interfere with the lives of citizens or by-pass normal safeguards until it is clearly established they are required again”. The new legislation does no such thing. The government’s approach, as set out in the explanatory notes to the new draft regulations, is not to establish clearly that such powers are required but instead to keep the powers it has amassed on a ‘wait and see what happens’ basis. 

A major issue in the way we have become accustomed to being governed since March 2020 is that the basis upon which the powers are exercised is not open to proper scrutiny, either by the States Assembly or the public. The powers are exercised at the fiat of the Health Minister (in ‘consultation’ with his colleagues) with a key requirement in the legislation being that the measures are deemed ‘necessary and proportionate’ by the Medical Officer for Health. The advice of the Medical Officer for Health is not published nor subject to any critique.  The understandable impulse of the Government to be seen to defer to the advice of ‘expert’ advisers inevitably means that for all practical purposes the decision whether to impose, continue or lift these measures falls to the Medical Officer for Health, who is not elected nor accountable to anyone. This lack of accountability is a serious problem. 

Contrary to the government’s stated aim, these powers do (and on one view are designed to) by-pass the normal safeguards on its power to interfere in the everyday lives of islanders. While such untrammelled power may be justified in times of emergency and in extremis, we are a very long way from that position. The government’s demand to extend its emergency powers for another year stretches the concept of an ‘emergency’ beyond credulity.  

The States Assembly’s positive assent should be required for every new restriction sought to be imposed; if only for the purposes of requiring the island’s elected representatives to turn their minds to the effect of these measures on individuals and local businesses. 

If the government’s approach is to retain the power to issue edicts that interfere with everyday life on a ‘just in case’ basis, it is difficult to see in what circumstances the Government will ever voluntarily relinquish these powers. The JLC considers that there is no current justification for extending the Covid legislation beyond April 2022. If the need arises, it can be met at that time.