The legality of the actions taken in response to Covid-19 are coming under question. And some are very reasonable questions to ask, writes law professor Andrew Geddis.

Questions over the legality of the various notices issued by the director general of health to enforce New Zealand’s Covid-19 “lockdown” have reached something of a critical mass in the last few days.

Following a pretty heavy hint from the Court of Appeal, an application for judicial review has been filed in the High Court. The House of Representative’s Regulations Review Committee is holding an inquiry into whether the notices were properly made. And its Epidemic Response Committee has “summonsed” the solicitor general and others to provide it with documents containing any legal advice regarding the lockdown given to the crown.

Let’s be clear about the nature of these questions. They are, for the moment, just that – questions. It can sometimes be a struggle to accept that well-meaning, reasonable people who have legal training can in good faith disagree over what “the law says” on a particular point. But they can and do.

Given that we’re dealing with the use of powers contained in a piece of legislation more than six decades old, expressed in quite terse fashion, and exercised in the midst of an emergency situation, it’s unsurprising that there’s some uncertainty about their “correct” interpretation and application. Having that debate involves no malice or unwarranted pedantry. Rather, it reflects a desire to get clarity about whether the claimed legal powers actually permit the very extensive actions that have been taken.

However, the best way to resolve uncertainties over the lockdown’s legality also is important. In particular, I think it’s questionable whether the Epidemic Response Committee should get involved in interrogating the legal advice that the crown received when deciding how to respond to Covid-19.

This committee has a really important role in ensuring the government (in the form of ministers and their officials) remains accountable for its actions in relation to the virus emergency. With some caveats (cough, cough, Māori), it’s done a very good job. But it isn’t the only institution that oversees the government’s actions. Most obviously, there are the courts, which have already demonstrated their ability to ensure the lockdown response remains within the bounds of the law in respect of compassionate release from quarantine.

And the committee’s role in holding the government to account also circumscribed by other institutional imperatives. In particular, by “summonsing” (ie demanding the production of) legal advice given to the crown, the committee is directly challenging the legal privilege that attaches to such documents.

That privilege allows the crown (as is the case with any client) to refuse to divulge the advice’s content, and it exists for a very good reason. Privilege permits legal advisers to give their full and frank views on the legal risks and challenges involved in any particular policy decision. Receiving that full and frank advice then helps the government to make the best decision on the matter at hand.

Without such legal privilege in place, legal advisers may hedge and trim their views to avoid having them rebound on their client (the crown) at a later date. So, rather than saying “this policy proposal has very weak legal foundations and there is a high risk it will be overturned if challenged in court”, they may instead say “there might be a potential legal issue with this policy proposal”. Which actually would be bad for deciding what is the best thing to do.

So, given that there’s another institution in place that is going to examine the lockdown rules’ legality (the courts), and the institutional value in enabling the crown to receive full and frank legal advice, it probably would be best if the Epidemic Response Committee backed off here. It probably doesn’t need to inquire into this issue, and by doing so it may well do longer term harm to our processes of government.

But does that then mean that the Committee can’t get hold of these documents using its summoning power if it really insists on doing so? Well, that’s a bit unclear. The relevant power is based on parliament’s historical privileges and is spelt out in the House’s standing orders in blunt terms: “The [committee] may order that a summons be issued to any person … to produce papers and records in that person’s possession, custody, or control to the … committee.”

However, all of the House’s powers must be exercised within the law. And legal privilege is protected by the common law, subject to specific overrides in legislation. For example, you can obtain legally privileged official information under the Official Information Act 1982, but only provided there is a “public interest” in doing so that outweighs the reason for the privilege.

What that background matrix then means for the Epidemic Response Committee’s summons remains to be seen. The solicitor general and others may very well respond by simply saying “sorry – this material just isn’t for your eyes.” In which case, the committee’s only recourse (beyond firing off outraged press releases) would be to raise the matter as a potential “contempt of parliament”. And whether such a refusal is a contempt of parliament only the Privileges Committee can decide.

How does it then decide such questions? By a vote, if necessary. And at the moment the Privileges Committee has five government members, and five opposition members. You do the maths.

Of course, many people (including perhaps some reading this) will regard these sorts of discussions of the lockdown’s legality and ways of addressing this as being completely beside the point. The lockdown was necessary! It worked!! So, who cares how it was achieved, or who asks such questions!?

Well, as Alex Braae, insightfully writes in (checks notes) a webizine called The Spinoff: “It might be tempting to write all of this off as just procedural nonsense – because as mentioned before, the lockdown prevented a mass outbreak of a deadly virus. But this sort of thing taking place is what it looks like when civil society systems are working as they are supposed to. It might not make for particularly exciting or juicy scandals, but these questions are fundamental to a functioning society, and we have to pay attention when they’re raised.”

Could not have said it better myself. So I won’t.