This article originally appeared in a Covid-19 Special Issue (April 2020).
Part One
Introduction
At this point, it is almost trite to say that we are living through unprecedented events. The global spread of the coronavirus pandemic poses serious challenges to society. So far, the global death-toll has exceeded 21,000 and life as we know it in the UK has changed dramatically. In response to this crisis the Government has announced drastic measures in order to curb the spread of the virus and to support those who may be affected. Indeed, it seems that Cicero’s famous injunction to let the welfare of the people be the highest law has gained a new relevance in the age of COVID-19.
As readers will probably know, a significant plank of the Government’s legislative response is the Coronavirus Act 2020, which received royal assent on 25 March having been fast-tracked through Parliament. This substantial piece of legislation –which consists of 102 Sections, 29 Schedules and runs to just under 360 pages– is intended to deal with the various challenges that may be posed by the coronavirus epidemic. As a result, its provisions are broad ranging, touching on areas as diverse as powers to disperse gatherings, pensions, sick pay, inquests and investigatory powers to name but a few.
Given the scope of this legislation, it would be folly for me to try and consider it comprehensively in one article. Therefore, this is the first of two articles on this subject. In this article I explore why this legislation was considered necessary and consider some general aspects of the Act. In a second article, I will explore some of the more interesting/controversial aspects of the Coronavirus Act 2020.
Why Legislate?
When the Government first produced an outline of the legislative proposals before the Bill was introduced to the Commons, at least one law and policy commentator cautioned against knee-jerk legislation and urged that consideration be given to whether existing powers may already be sufficient to deal with the challenges that might arise. In certain respects, the point is well made. For example, the Public Health (Control of Diseases) Act 1984 (as amended) allows for wide ranging regulations and orders to be made for the purpose of preventing, protecting against or controlling the spread of an infection.
However, as alluded to above, the 2020 Act encompasses far broader powers than those in the 1984 Act and appears to create powers of more general rather than specific application. Importantly the 2020 Act also creates a unitary legislative scheme for dealing with the pandemic across all of the nations of the UK or, to use what seems to be a popular political term, ‘levels up’ the response. An interesting constitutional point that arises from this is that, despite the extraordinary nature of the legislation, the drafting appears to preserve the Sewell convention, whereby most changes that may be made under the Act to any legislation dealing with devolved matters will require the consent of the relevant devolved administration.
Another option for dealing with the crisis without the need for new legislation may have been to use the powers under the Civil Contingencies Act 2004 . Under this Act, a senior Minister of the Crown (Prime Minister, Secretary of State or Lord Commissioner of the Treasury) is empowered in certain circumstances –which are likely to be deemed met at present– to make very broad ranging emergency regulations. However, regulations under the 2004 Act must be ratified by Parliament within seven days of being made. Furthermore, such regulations expire after 30 days. Thereafter they must then be renewed and re-ratified. This means that for any power granted under the Civil Contingencies Act 2004 to remain in force for the duration of the crisis, Parliament would have to meet at least every 30 days. In the context of an epidemic, this simply may not be possible. On this basis, the Government appear to have decided that more enduring legislation was necessary.
The Sunset Clause
Turning to the Coronavirus Act 2020 itself, the first point to note is that, while it has more longevity than regulations made under the Civil Contingencies Act, it is still clearly intended as temporary emergency legislation. As will be seen in part two, this legislation makes fundamental changes to a range of areas of law and grants very significant powers to the authorities. However, due to the urgency of the situation the legislation could only receive the most cursory of parliamentary scrutiny before being passed. Ordinarily, legislation making some of the changes proposed would be expected to be subjected to significant scrutiny in both houses of Parliament. In this case the Bill was introduced on Monday and received Royal assent on Wednesday.
In these circumstances it was clearly necessary to place a limit on the duration of most of the Act’s provisions. To this end, Section 89 of the Act, creates a sunset clause, under which the majority of the provisions will expire after two years. However, this period may be extended by six months or shortened in accordance with Section 90. In the Bill as drafted, these were the only limitations on the longevity of the Act. In circumstances where such significant legislation would be nodded through Parliament, an unchecked legislative lifespan of two – perhaps up to two and a half– years is a very long time. Particularly, considering the Prime Minister’s ambition to ‘turn the tide on the disease in 12 weeks’.
Understandably, this raised significant concerns among human rights groups, lawyers and MPs from across the political spectrum. To its credit, the Government was receptive to these concerns and ultimately accepted an amendment, which introduced the requirement that the operation of the Act must be reviewed by Parliament every six months (see Section 98). This appears to strike an appropriate balance between the need to maintain parliamentary oversight of the significant powers created by this Act, and the concerns that Parliament may not be able to operate as normal during the crisis. Indeed, a six month review period appears to be more in line with approaches to such legislation taken in other common law jurisdictions.
Human Rights
Before the Bill was published Barrister, Adam Wagner produced a detailed Twitter thread in which he set out his observations on any potential legal response to the coronavirus. In the thread, he very compellingly emphasised the importance of keeping human rights values at the centre of any such response.
An important general point arises in this context. Under Article 15 of the ECHR, in times of war or other emergency threatening the life of the Nation, a Contracting State may derogate from many of its human rights obligations under the Convention. Such a course of action appears to be contemplated by at least six Council of Europe Member States as a result of the coronavirus. In contrast, the UK Government has not yet signalled any such intention. Therefore, any action taken under the Coronavirus Act 2020 must necessarily be compatible with all of UK’s ECHR obligations in accordance with the Human Rights Act 1998. In Part 2, I will explore certain aspects of the legislation for which this requirement will be of particular relevance.
In general, the drafters of the legislation demonstrate an acute awareness that any measures adopted under the Act must be proportionate. Indeed, the phrase “necessary and proportionate” appears no fewer than 48 times throughout the Act. Furthermore, the Government has explicitly stated:
The measures in the coronavirus bill are temporary, proportionate to the threat we face, will only be used when strictly necessary and be in place for as long as required to respond to the situation.
To support this aim, Section 88 of the Act creates an ‘on/off switch’ whereby the operation of any provision of the Act may be suspended and revived by regulations as and when the measures are considered necessary throughout the life of the legislation.
As it stands most of the provisions of the Act have been brought into force as of 25 March. The exceptions to this are provisions relating to: Emergency volunteers; modifications to Mental Health legislation; changes to the powers and duties of local authorities in relation to the provision of care and support; changes in relation to the registration of deaths and still births; and provisions relating to food supply. These provisions will be brought into force as and when they are deemed necessary. In the next post, I will consider the substantive provisions of the Act and highlight some aspects that are particularly interesting or controversial, or indeed both.
Part Two
Note:
In Part One (above), I set out what I considered to be the Government’s rationale in enacting the Coronavirus Act 2020 rather than relying on existing legislation. In a piece for Law Society Gazette Dr Andrew Blick and Professor Clive Walker have sought to rebut this rationale and argued that the Government should more appropriately have used the Civil Contingencies Act 2004.
Introduction
In Part One, I considered the background to the Coronavirus Act 2020 and some general aspects of the legislation. Here, I focus on some of the substantive provisions of the legislation and briefly explore the role that human rights law has to play in the management of the COVID-19 crisis.
At this point it bears repeating that the UK Government has not derogated from the ECHR under Article 15. Thus, any measures introduced in response to the coronavirus must be compatible with the UK’s full human rights obligations under the Convention as transposed into domestic law via the Human Rights Act 1998. Jeremy McBride has produced an excellent piece on the ECHR Blog, in which he analyses the range of various responses to the COVID-19 crisis through the lens of the Convention obligations. Such an exercise is not possible here due to constraints of space. However, towards the end of this piece I will briefly consider the compatibility of the lockdown restrictions on movement with the UK’s ECHR obligations.
Aims of the Legislation
According to the Explanatory Notes that accompanied the legislation as it proceeded through Parliament, the aims of the Coronavirus Act 2020 are to support the Government’s efforts in five broad areas:
- increasing the available health and social care workforce;
- managing the deceased with dignity and respect;
- supporting people;
- easing the burden on frontline staff; and
- containing and slowing the spread of the virus;
As I have commented in Part One, the Coronavirus Act 2020 is a substantial piece of legislation. Readers may perhaps be relieved that considerations of space prevent me from engaging in a detailed analysis of each and every effective provision. Rather, I will provide an overview of the substantive measures, focusing in more detail on certain aspects.
Increasing the Available Health and Social Care Workforce
In order to increase the manpower available in the health and social care sectors, Sections 2 to 7 and their associated schedules provide for the emergency temporary registration of various regulated healthcare professionals and social workers for the duration of the emergency. Importantly, sections 11 to 13 of the Act make arrangements to provide indemnity against clinical negligence claims for healthcare professionals assisting in the response to the crisis, who would not otherwise be so indemnified.
Another mechanism by which the legislation seeks to increase the pool of personnel who can assist with the response to the crisis, is by providing for Emergency Volunteering Leave. When Sections 8 and 9 of the Act are brought into force, workers will be entitled to unpaid statutory leave in order to act as Emergency Volunteers in the health or social care sectors. These Emergency Volunteers may also be compensated for loss of earnings and for travel and subsistence.
Managing the Deceased with Dignity and Respect
The Act also introduces measures to manage the increased number of deaths caused by the pandemic. Temporary changes are made to the procedures for registering deaths and still births (Sections 18 to 21) and temporary arrangements are made in Section 58 and Schedule 28 in respect of the transportation, storage and management of the bodies of the deceased.
Temporary changes are also introduced to coronial law under the legislation. For the purposes of any inquest opened after the coming into force of the legislation (25 March 2020), COVID-19 is not a notifiable disease. This means that a jury inquest is not required to be held if there is reason to suspect that a death was caused by the virus. This measure is eminently sensible when one considers that, at the time of writing there have been over 16,000 deaths as a result of COVID-19.
Supporting People
In order to fulfil the aim of supporting people, the Act introduces measures in respect of statutory sick pay (Sections 39 to 44). Included in these measures is the power to disapply the three day waiting period, so that those who are off work sick will be entitled to statutory sick pay from the first day upon which they are absent. The Act also introduces certain protections in respect of tenancies by effectively increasing the notice period for evictions to three months across the board (Sections 80 to 84). Furthermore, under the Act designated authorities may be granted powers to request information that can be used to avoid or mitigate any potential disruption to the food supply chain (Sections 25 to 29).
Easing the Burden on Frontline Staff
Mental Health Law
Section 10 and its associated schedules make temporary modifications to mental health legislation to reduce the demands placed on medical professionals as a result of various administrative procedures. Ordinarily an application for the compulsory detention of a person under the Mental Health Act 1983 must be supported by the opinion of two doctors. However, when these provisions are brought fully into force, if it is impractical to obtain the advice of two doctors or if this would cause undue delay, the opinion of one doctor will suffice. Other modifications include the extension of various periods for which a person may be detained or held on remand under the Mental Health Act; and amendments to procedures for the administration of medication to a detained patient without their consent. Clearly, if brought into force, these changes would represent dilutions of important safeguards that are currently in place in respect of potentially vulnerable individuals. The effects of such changes will require careful monitoring in order to ensure that the interests of vulnerable patients are protected.
Adult Social Care
Sections 14 to 17 of the Act make significant changes in respect of the adult social care regime. The changes essentially suspend the duty placed on local authorities to make an assessment in respect of an adult who may have needs for care and support, or who is receiving NHS Continuing Healthcare but is no longer eligible for such. Furthermore, the general duty to meet the eligible needs of certain adults becomes a power, with a duty only arising if a failure to do so would breach the Human Rights Act. As Mary-Rachel McCabe and Jamie Burton explain these changes are significant and may have very serious impacts on adults with social care needs.
Oversight of Investigatory Powers
Section 22 and 23 of the Act allow for temporary changes to be made to the Investigatory Powers Act 2016. These changes relate to the appointment of Judicial Commissioners, who are required to carry out certain oversight functions under the 2016 Act; and to certain time-limits in respect of warrants issued pursuant to that legislation –including the ex-post facto ‘urgent-warrant’ process. Section 24 of the Act allows for regulations to be made extending the time period for which biometric material, such as fingerprints and DNA profiles may be held by the police. Each of these changes represents an erosion – however slight – of the safeguards placed on important and potentially intrusive investigatory powers. While it is of course important that police and other resources are appropriately deployed during the crisis, we should not downplay the trade-offs that may be needed to facilitate this.
Containing and Slowing the Spread
Perhaps the suite of measures under the Act that may have the greatest impact across wider society are those aimed at containing and slowing the spread of the virus. These include: powers in respect of the provision of education, training and child-care (sections 37 and 38 and schedules 16 and 17); powers to suspend port operations (Section 50 and Schedule 20); allowing for the use of video and audio technology by courts and tribunals to facilitate remote hearings (Section 53 to 57); and the postponement of upcoming elections (Sections 59 to 70).
Section 51 and Schedule 21 of the Act contain certain coercive powers in respect of potentially infectious persons. Under these provisions, Public Health Officers are empowered to require a potentially infectious person to submit to screening and assessment and to impose certain restrictions and requirements on such persons. Constables and Immigration Officers are also empowered to direct or remove a person to a suitable place to undergo screening and to hold them there for a period of time in order to hand them over to a Public Health Officer.
In respect of more generally applicable powers, Section 52 and Schedule 22 create powers to issue directions in relation to events, gatherings and premises. Under these provisions, events and gatherings may be prohibited and orders can be made in respect of specified premises imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons within them. These are clearly very broad powers with the potential to impinge significantly on the freedom of movement of large sections of the population.
Despite these broad powers in the Coronavirus Act 2020, the current lockdown restrictions – contained in the Health Protection (Coronavirus, Restriction) (England) Regulations 2020 and their Scottish, Welsh and Northern Irish counterparts – were not made under that Act. Rather they were made under the Public Health (Control of Diseases) Act 1984. There has been significant debate throughout the blogosphere – including on the UK Human Rights Blog – in relation to the lawfulness or otherwise of these regulations. The arguments have focused on the question of whether the regulations are ultra vires the 1984 Act. As my focus here is the Coronavirus Act 2020, I do not propose to enter into that particular fray. But it is perhaps worth examining briefly the compatibility of the lockdown restrictions with the Human Rights Act 1998.
The UK has not signed up to the Fourth Protocol to the ECHR, Article 2 of which guarantees the right to freedom of movement. The compatibility of the UK’s lockdown provisions with the State’s ECHR obligations, therefore, falls to be judged by reference to Article 5 of the Convention. Importantly, Article 5 is concerned with deprivations of liberty rather than ‘mere restrictions.’ As the Grand Chamber has pointed out in De Tommaso v Italy, when deciding whether a measure constitutes a deprivation or merely a restriction on liberty:
“…account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance.” [80]
Importantly, this assessment may be made by reference to the context and circumstances in which the measures are imposed (De Tommaso at [82]). Thus, when considering whether a given set of measures constitute a deprivation of liberty, a holistic view must be taken of the situation in which those measures are imposed, and of their degree and intensity.
Applying this to the present situation, the lockdown measures have been imposed in order to prevent the spread of a global pandemic and to protect life in accordance with the State’s positive obligations under Article 2 of the Convention. Rather than confining people at home, the regulations prohibit individuals from leaving their homes without a reasonable excuse. A non-exhaustive list of examples is included in the regulations making it clear that activities such as exercise, shopping for essentials, and travelling to work – at least for some people – are reasonable excuses. The restrictions are to be reviewed at three week intervals and the regulations contain no temporal curfew or strict geographic limit on the distance one can travel from their home if they have a ‘reasonable excuse’. It is, therefore, my preliminary view that the regulations as currently drafted would be considered a restriction of liberty rather than a deprivation and are likely compatible with the UK’s obligations under the ECHR.
While the regulations as drafted may be Human Rights Act compliant, a discrete question also arises with respect to the manner in which the restrictions may come to be policed. For the most part the enforcement of the regulations by police so far appears to be relatively light-touch. It would seem that the authorities are doing their best properly and appropriately to impose unfamiliar regulations in a difficult and unprecedented situation. That said, there has been at least one case in which the nature, source and extent of the authorities’ powers to enforce the lockdown have been badly misunderstood. Furthermore, there appear to be some reports of perhaps overzealous individual officers misconstruing the extent of the lockdown. These cases appear to be outliers – though perhaps amplified by social media. However, if such situations are not monitored and corrected, injustices may result. As we continue through the lockdown, vigilance is needed to ensure that the boundaries of what the authorities are empowered to do are not overstepped, and that powers that were granted for valid and worthy reasons are not used arbitrarily or improperly in the confusion of a national crisis.
Conclusion
The spread of coronavirus in the UK has created an emergency the likes of which have not been seen in this author’s lifetime. Such circumstances pose difficult questions for a liberal, democratic society. From a human rights perspective the Government has positive obligations under Article 2 of the ECHR to put measures in place to protect the lives of those in the jurisdiction against any risks of which the State is aware or reasonably ought to be. Clearly such obligations are engaged by the current crisis. Furthermore, the scientific advice upon which the Government relies in designing its response to the COVID-19 crisis and seeking to fulfil these positive obligations, is that drastic and unprecedented measures of social distancing, quarantine and isolation are required to preserve the welfare of the public at large.
This response would appear to be in line with that of other democratic states and indeed less draconian than some. But the fact remains that in response to this emergency, the State’s powers to impinge upon the lives of its citizens have increased significantly. Furthermore, certain safeguards and checks and balances that aim to preserve our fundamental rights and the rule of law have been diluted. Emergencies can be dangerous times for things such as these. In the words of the late Adrian Hardiman, a former Justice of the Irish Supreme Court:
“The cry of emergency is an intoxicating one, producing an exhilarating freedom from the need to consider the rights of others and productive of the desire to repeat it again and again” (Dellway Investments and Others v NAMA and Others [2011] 4 IR 1 at 289).
It is clearly incumbent on the population to support legitimate efforts to control the virus and to deal with the crisis it has created. However, it is also important that a sense of vigilance is maintained. The legitimate scrutiny of the Government’s emergency actions and any encroachments into the lives of the population must continue throughout the crisis. Such scrutiny will ensure that those actions remain lawful and where they intrude on various rights, that they are limited to what is necessary and proportionate for dealing with the threat that we face. In our current circumstances, if we wish to protect the welfare of the public while resisting the intoxicating cry of emergency, we must seek to strike the difficult balance between compliance and vigilance.
This article also appears on the UK Human Rights Blog.
