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Covid-19 and Pseudolaw: An Overlooked Consequence of the Pandemic

As the UK comes to terms with its response to the COVID-19 pandemic, one area of concern might be the way in which it has exposed the false beliefs many people have about the UK constitution. From March 2020 onwards, some owners of small businesses and others seeking to circumvent lockdown restrictions have attempted to invoke a ‘right to lawful rebellion’, either by citing Article 61 of Magna Carta or another document which they believe to have ‘constitutional’ status. Only a few weeks after the final easing of lockdown restrictions in Scotland, Edinburgh Castle was ‘stormed’ leading to the arrest of a protester and the injury of a police officer; many similar events have been chronicled in local and national media. Some in the legal and journalistic community have expressed derision at these actions, although I contend that they are important symptoms of the misapplication of rights-based discourses in the public mind, rather than mere ignorance. It is tempting, particularly for readers of this blog, to dismiss the protests as the consequence of an angry public contemptuous of lockdown restrictions. After all, the Westminster legislative process and parliamentary sovereignty are the first things every law student learns, and are easily grasped. But these acts of ‘dissent’ have significant implications for the way many people perceive the relationship between them and the British state. I observe that dissenters conveniently ignore the classical conception of Parliamentary sovereignty in favour of more ‘legalistic’ principles, which they believe to afford them greater legitimacy. However, the damages caused to the people who wrongfully believe their actions to be lawful, which may include arrest, fines and imprisonment, demonstrate that the public need to understand the animating principles of the British constitution in order to properly understand their relationship with the state.

Anti-lockdown protestors in the UK invoke principles which closely resemble ‘rules according to higher law’ located in jurisdictions which operate under written constitutions. The supposed ‘right to lawful rebellion’ echoes the intent behind the Second Amendment to the U.S. Constitution or the right to resistance enshrined in Article 20(4) of the German Grundgesetz, which were designed to provide legitimate legal justifications for rebellion against totalitarianism. Indeed, anti-lockdown ‘Querdenken’ protestors in Germany have vexatiously invoked their right to ‘resistance’ in a similar way to their British counterparts’ invocation of Magna Carta. They seek to bypass the ‘political’ constraints imposed by Parliament by appealing to a ‘legal’ (i.e. judicially and morally enforceable) escape clause. They falsely believe that the UK operates under a codified hierarchy of norms in which ordinary legislation can be ‘set aside’ if it conflicts with a higher constitution, albeit an imaginary one. To borrow a useful phrase from Brian Christopher Jones, they have an ‘infatuation with writtenness’.

It is quite remarkable that these ‘dissenters’, who are protesting against acts authorised by their states’ constitutions, are seeking legal authority for their actions. I suggest that they are misappropriating the language of human rights, which are quite easy to exploit for this purpose because they are worded in a clear and understandable manner, are general rather than specific, and are understood in the public mind to ‘supersede’ legislation which conflicts with them, even if this does not operate in practice. For example, in Canada, where the pseudolegal phenomenon has been thoroughly discussed by Donald J. Netolitzky, dissenters often rely on the preamble to the Canadian Bill of Rights, which contains the phrase ‘supremacy of God’, in order to legitimise spurious legal arguments founded in Christianity. This rights-based discourse allows dissenters to believe that their actions are legally legitimate and avails them of the need to engage with the robust, but somewhat obtuse, legislation upon which objectionable policies – in this case, lockdown restrictions – are lawfullybased.

These appeals to rights are especially unusual in the UK because, as discussed above, the principle of parliamentary sovereignty and the maxim ‘the [British] Constitution is no more and no less than what happens’ are relatively simple. This can be taken to mean that Parliament can practically enact any law it wishes to unless that law would constrain a future parliament. As such, the lawful basis for lockdown restrictions (including delegated legislation) can readily be traced to Parliament’s authority, regardless of how onerous the dissenters view it. The fact that some protestors have rejected the notion of parliamentary sovereignty in favour of fictitious constitutional principles, such as the ‘right to lawful dissent’, indicates that the doctrine does not have sufficient currency in their mind. As the Law Commission’s Statute Law Repeals Team pointed out in an informal 2013 document, there is a litany of common legal misconceptions which have the potential to cause confusion regarding what is and is not prohibited by law. Although most are light-hearted and unlikely to lead to actual instances of lawbreaking, their presence is far from conducive to justice. The idea that parliamentary legislation can be dissented from acts as a more dangerous iteration of the listed misconceptions and fundamentally undermines its adherents’ ability to understand their state’s legal system. False beliefs about the law are extremely harmful. Misguided protestors may face criminal records, arrests, injuries, fines or prison terms as a result of their actions and valuable police and court resources may also be wasted. Judges’ opinions of these movements have already been articulated, most famously in the seminal Albertan case of Meads v Meads, yet the arguments remain compelling; the Facebook groups which promulgate these myths have thousands of members, and viral ‘Article 61’ posts on Instagram and Twitter have similar levels of engagement, increasing the likelihood that people in desperate situations will be exposed to them and deploy them as legal arguments. In Canada, where the phenomena have been formally categorised as ‘organised pseudolegal commercial arguments’ (OPCAs), judges have warned of a community of ‘gurus’ who market and promote pseudolaw in order to exploit public grievances. Their arguments have penetrated into the UK judiciary, as demonstrated by a 2015 Northern Ireland judgment involving a man who fell behind on his mortgage payments and resorted to the now familiar argument that unilateral obligations cannot arise from legislation – that he could ‘lawfully dissent’ from the UK’s property law regime. It is unsurprising that more of these arguments have been deployed in response to coronavirus restrictions as more obligations have been imposed on the public. This article has attempted to demonstrate how rights-based discourses can be abused both by members of the public seeking to circumvent constitutionally legitimate (albeit burdensome) legal restrictions and by those willing to exploit individuals facing hardship. While the problem is by no means unique to the UK, the stark difference between the UK constitution’s appearance to dissenters and the way it actually operates renders it worthy of serious consideration here.

Sean Pearce is a law graduate from the University of Sheffield seeking to pursue an academic career.

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