Covid: a legal game changer?

We seem to now be part of a new dispensation – one not governed by the common law, nor by Parliamentary laws. This is a strange new world; indeed, this is a game changer.

The truth of the matter is that society seems to increasingly be operating outside of the law, and much of this is being enforced by employers. Recently, a government official declared that after the state of disaster has gone, his department will put mandatory vaccination rules in place. The official also announced that this can be done without going to parliament. Society is increasingly operating outside of the laws made by parliament, so is parliament becoming increasingly irrelevant in modern society?

First, let’s check where parliament gets its power from. Periodically, in democratic societies, general elections are held. Persons are elected to parliament to enact laws. Much of English history can be traced to the sealing of the Magna Carta in 1215, but what happened is very much an English tradition and was not followed in other parts of the world for several centuries.

The Magna Carta was an agreement between King John and his leading Barons (or Lords), signalling the beginning of the English parliamentary system, in which that institution makes laws. As time went on, it became clear that to make laws the agreement base would need to be broadened to include what became known as the Commons. This was not a novel idea: it existed in Roman society as the Assembly of Plebs. Now of course, not everybody could go to the Commons, so it had to elect representatives.

These representatives were elected and sent as delegates to represent the people of the district in making laws. Therefore, three parties existed in this parliament: the King, the Lords, and the Commons. To make a valid law, all three had to agree – something known as the mixed constitution.

There is another part to the story, though. If we examine how societies evolved, there is a pattern of wars and kings. Individuals unable to protect themselves against various types of mobs rallied around a strong man: the king. Some managed to survive, while many others were conquered as kingdoms grew in size. Therefore, individuals either found themselves subject to a king or subjugated through conquest. The subjugated usually paid a tax, or tribute, to their overlord.

In some cases, kings established dynasties that ruled for centuries. Monarchs even developed a doctrine – the Divine Rule of Kings – through which they proclaimed their God-given right to rule and therefore, by default, the God-inspired duty of the ruled to obey the king. After centuries of this, individuals could not be sure if, indeed, they had any rights at all; these rights may well have been vested in the monarch or state.

What followed was “the American Experiment” when America unilaterally declared independence. Here was a society evidently not subject to a king or state. They set out the basis of this new society in the preamble to their constitution, where they declared: “We the People … in Order to … secure the Blessing of Liberty to ourselves … establish this Constitution.” 

Sovereignty resided in the individual; the ability to make binding laws rested exclusively with the parliament of the elected delegates. It was clear that no power to make laws could be claimed by anyone else, and especially not a monarch, aristocracy, or governing elite. In other words, the power to make laws could not be delegated.

Now herein lies the problem regarding claims that employers have a legal obligation to protect employees, and the insistence by employers that their employees either get vaccinated or be fired. Where does this legal power come from? In the US, the Federal Parliament made it clear it would not pass a law imposing a mandatory vaccination. The US President himself made it very clear that he wanted a mandatory vaccine but he, on his own, has no legislative power.

The US Occupational Safety and Health Administration (OSHA) agency also tried to impose this mandate, but the US Supreme Court stated that it had no such legislative power without a clear law to impose vaccination. But some employers are nevertheless imposing the mandate. Again, where does the legal power to do so come from?

The position in South Africa is interesting. The government itself has made it clear that it will not impose a mandatory vaccine, but there are clearly scores of government officials in favour of doing so. There are even many government officials who could well argue that they have been delegated the authority to impose these mandatory vaccines by parliament, in terms of regulations or other statutory instruments. But no such instrument has been issued: in South Africa, neither parliament nor government officials have issued any document imposing mandatory vaccination. But employers are imposing them nonetheless.

In fact, employers worldwide are imposing mandatory vaccination policies, yet is unclear where this notion has come from. It has certainly not come from parliaments. Somehow, a system has evolved within which employees must either get vaccinated, or they will be fired. Most employers, including those in South Africa, maintain that they have a legal duty to insist employees – and anyone else they believe they can impose their will on – must be vaccinated.

Some would argue that there is a general law that imposes such an obligation. Others have even argued that the common law itself imposes an obligation on the employer to create a safe working environment, meaning that they can insist on vaccinations.

Now, the problem with this view is that the obligation of the employer is to provide a safe working environment – in other words, to provide safety equipment. For an employer to require employees to be vaccinated is to extend this obligation beyond this scope. It grants the employer a power that in fact does not exist: the power to make law.

Even if someone claims to have this power, the position is clear – no such power has been, or can be, delegated by parliament because legislative power rests with parliament alone.

So then, when one takes all of this into account, it seems obvious that society is now operating outside of the law … and that Covid has been the game changer.