Welcome to The Plague Pit

This guest issue – number 19 – addresses some of the legal issues relating to COVID-19. As a non-lawyer, I’m especially grateful to retired Parliamentary Counsel, Mr Robin Dormer, for his lucid account.

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When faced with a crisis or threat, real or perceived, governments of all sorts will take steps to protect their country against it.  In a democracy, that response may well require legislation, for example to confer new powers on the state or its agents (e.g. the National Health Service or the police), or to alter existing arrangements.  In this piece I am going to talk about the UK government’s legislative response to coronavirus, either as respects the whole of the UK or as respects England (I am not going to cover the devolved administrations in Scotland, Northern Ireland and Wales).

In the UK, legislation is either primary legislation, i.e. Acts of Parliament, or secondary legislation, i.e. regulations made by a Minister under powers conferred on the Minister by an Act of Parliament.  Primary legislation is drafted by the Office of the Parliamentary Counsel, a part of the Civil Service—I was a member of that Office before I retired.  Secondary legislation is usually drafted by lawyers working for the relevant government Department—in this case the Department for Health and Social Care[1].

The coronavirus legislation

The main piece of primary legislation dealing with the coronavirus crisis in the UK is the Coronavirus Act 2020.  This is 348 pages long, and contains 102 sections and 29 Schedules.  It is therefore a big Act, as Acts go.  The Coronavirus Bill was formally introduced into the House of Commons on 19 March 2020.  All further stages in the House of Commons took place on 23 March.  It arrived in the House of Lords on 24 March, and all its stages in the House of Lords took place on 25 March, when it also received Royal Assent—i.e. when it was passed and thus became an Act.  Six days from start to finish is very rapid indeed: the UK Parliament can move swiftly if there is agreement on all sides, but usually Bills take much longer.  It will certainly have taken longer than 6 days to draft before introduction, but I can only guess at the pressure the drafters were under to produce a Bill that long in what was, I have no doubt, a limited time.

The Coronavirus Act 2020 covers many topics[2].  The Act illustrates how many different aspects of our life may be affected by the coronavirus.  In addition to some fairly predictable powers, such as to prohibit events, to close schools temporarily, or to deal with potentially infectious persons,  the Act also makes provision about (for example)—

• the emergency registration of health care professionals, to allow retired practitioners to return to practice temporarily;
• powers to require information about food supply chains;
• the postponement of elections etc.;
• powers to suspend port operations;
• live links in criminal hearings;
• protection from eviction in relation to residential tenancies.

At the time of writing[3], the main piece of secondary legislation in England is the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020[4] (the other UK nations have their own provision).  It is these Regulations which impose the “lockdown”.  These Regulations have (so far) been amended twice by subsequent Regulations, most recently to alter the lockdown requirements in accordance with recent government statements.  These Regulations were made under powers conferred on Ministers by the Public Health (Control of Disease) Act 1984.  The original set of Regulations was made by Mr. Matt Hancock, the Secretary of State for Health, at 1.00 p.m. on 26 March 2020, and came into force straight away.  It is unusual for a set of Regulations to be made at a specific time of day, and then to come into force immediately.  When made they were 11 pages long, and contained 12 regulations and 2 Schedules, dealing with topics such as—

• requirements to close businesses;
• restrictions on leaving home;
• restrictions on gatherings.

Eternal vigilance

As Thomas Jefferson probably did not say[5], “eternal vigilance is the price of liberty” (there are also other variants).  There is always the risk that powers conferred on a government will be excessive, or used for unintended purposes; or that the threat the powers are designed to deal with is manufactured rather than real.  This can be a fine line to draw: the powers conferred on the British government at the beginning of the Second World War were enormously wide, as they needed to be.  A notorious example of excessive powers is the Enabling Act passed by the German Reichstag on 23 March 1933, which in effect conferred dictatorial powers on Hitler.  Germany was at the time, at least formally, still a democracy.  A more recent example might be the powers, ostensibly for the purpose of dealing with coronavirus, conferred without limit of time on the government of Mr. Victor Orbán in Hungary[6], a member State of the EU.  In our own country, an example of unintended purposes might be the use of section 44 of the Terrorism Act 2000 against (among many others) two demonstrators outside the ExCel Centre in London in 2003, and against Mr. Walter Wolfgang, a protester in the Labour Party Conference in 2005.  That section permitted stop-and-search even without reasonable suspicion.  The two demonstrators later challenged that section on human rights grounds;  and it was in due course found to be in breach of Article 8 of the European Convention on Human Rights[7], and has since been replaced.

Safeguards

There is no doubt that the threat of coronavirus is a real one, and that extra powers were needed.  What, then, are the safeguards against abuse of these powers?  Apart from specific limitations on individual powers contained in the individual provisions of the legislation, there are two—

• the jurisdiction of our independent judiciary over cases arising in connection with coronavirus, which is an important part of what is called “the rule of law” in this country[8]; and
• the fact that both the Coronavirus Act 2020 and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are time-limited.

The Coronavirus Act 2020, or much of it, expires after 2 years (this is known as a “sunset provision” or “sunset clause”), although Ministers do have the power to extend it 6 months at a time by making Regulations to that effect.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 expire 6 months after they came into force, and would have to be re-made if the powers were to be extended.

In either case, extensions would require or permit further consideration by Parliament.  But let us hope that no extensions prove necessary.

Robin Dormer

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Robin Dormer is a retired Parliamentary Counsel.  Having qualified as a solicitor, he worked there and also at the Department of Health and the Law Commission.  An example of his drafting as Parliamentary Counsel is the legislation banning smoking in public places (“the only legislation I ever wrote which had an immediate and beneficial effect on my own personal life”).

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[1] I also worked for a number of years as a lawyer in the Department of Health (as it was then called).

[2] You can find the text at: http://www.legislation.gov.uk/ukpga/2020/7/contents .

[3] I say “at the time of writing” because if the lockdown is substantially altered, it may be more satisfactory to replace these Regulations by new ones, rather than simply to amend the existing ones.

[4] You can find the text at: http://www.legislation.gov.uk/uksi/2020/350/contents .

[5] https://www.monticello.org/site/research-and-collections/eternal-vigilance-price-liberty-spurious-quotation .

[6] See, for example, this article in The Guardian newspaper: https://www.theguardian.com/commentisfree/2020/apr/01/viktor-orban-pandemic-power-grab-hungary ; or this one in the Financial Times newspaper: https://www.ft.com/content/27243d36-bf9d-411f-89ed-1d118ae639f8 .

[7] Gillan and Quinton v. United Kingdom, Application no. 4158/05: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-96585%22]}

[8] See The Rule of Law (2010) by “Tom Bingham” (the late Lord Bingham, formerly Senior Law Lord in the House of Lords; the House of Lords Judicial Committee was the predecessor of today’s Supreme Court).