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Ill Fares the Land: Has COVID-19 Killed the Principle of Legality?

Abstract This paper is part of a larger project, arguing that the COVID-19 pandemic has exposed public law as being unprincipled and ineffectual in virtually all common law jurisdictions. This paper focuses on the treatment of the 'principle of legality' in judicial review proceedings in England, Australia and New Zealand, seeking to challenge the lawfulness of various governmental actions to tackle the pandemic. While up until 2020, the principle of legality was employed to declare unlawful governmental actions in a number of very important cases - most notably, the UK Supreme Court's decision in Miller 2 - in cases involving challenges to the lawfulness of government attempts to deal with COVID-19, the principle of legality has been consistently sidelined and ignored, using various techniques described in this paper.