The Cambridge Private Law Centre last week hosted its annual Freshfields lecture. Lord Sumption addressed us on “Government by decree—Covid-19 and the Constitution”. This lecture has received considerable media attention and already been mentioned on this blog. (A link to the lecture and a transcript is here.)
One of Lord Sumption’s major claims was that the Covid-19 regulations that have restricted the free movement of the UK population were, in many instances, ultra vires the empowering legislation. I will not engage with that controversial claim here. Obviously it is of great constitutional importance and interest. Assuming that Lord Sumption’s claim is right, could the regulations’ invalidity expose the Government to mass liability—to the entire UK population—for the tort of false imprisonment? Thus stated, the proposition seems highly unlikely. It would certainly be unprecedented. But perhaps that is because a pre-emptive quarantine of the entire population is also unprecedented. It is worth thinking about a hypothetical claim.
“If this argument succeeded the claimant could obtain substantial damages for deprivation of liberty (it matters not whether she was upset by it, let alone physically or mentally harmed by it—although these would be aggravating factors; and Lord Sumption’s account suggests the potential for exemplary damages too). There is no easy way to quantify loss of liberty in money. We could note, for example, that in Jalloh the claimant recovered £4,000 damages having endured an unlawful nocturnal curfew over 2 ½ years. So Jane Hampden’s damages for false imprisonment, if her claim crossed the three formidable doctrinal obstacles considered above, would probably not be life-changing in magnitude. Yet if a test case established that the entire population were entitled to similar payments, the financial consequences for the government of having acted ultra vires on the scale that Lord Sumption alleges would be astonishing.”