Editor’s Note: This piece is part of Just Security’s Assessing Emergency Powers During #COVID-19 series, which aims to highlight legal and civil society voices from across the globe, assessing the specific legal consequences of declared and de facto emergencies. Contributions have covered Italy, Hungary, Brazil, Poland, Mexico (see here), and Colombia.
The United Kingdom has garnered considerable prowess in handling emergencies, as illustrated by its encyclopedic counterterrorism laws. Less widely appreciated are the extensive codes available to the government about other real or imagined disasters, ranging from floods to meteor strikes and including public health risks. Here too, core legislation has been installed, including the all-encompassing Civil Contingencies Act 2004 (‘CCA2004’) and the sectoral Public Health (Control of Disease) Act 1984 (‘PHA1984’). Despite these finely-honed models, the UK state regressed to panic mode when faced with the COVID-19 pandemic. Rather than turning to the laws already in place to handle crises like the pandemic, Parliament fast-tracked the Coronavirus Act 2020 (‘CA2020’), with scant debate of its shabbily drafted contents over just seven days toward the end of March. Parliament then vanished into recess for four weeks. In addition, the government installed without any scrutiny in any form regulations under the PHA1984. Here, we shall review the contents and defects of the new CA2020, followed by the competing features of the laws that were previously in place: the PHA1984 and CCA2004. Following this survey, it will be suggested that the selection of legal instruments and the design of their contents has been ill-judged. In short, the emergency code which is the most suitably engineered for the purpose, the CCA2004, has been the least used for reasons which should not be tolerated.
Coronavirus Act 2020 (CA2020)
The CA2020 delivers fulsome details over 342 pages, so this summary is highly selective (for more detail see the official Explanatory Notes). The Act aims to implement the government’s Coronavirus: Action Plan, which seeks to Contain, Delay, Research, and Mitigate. All aspects of that Plan are potentially covered. While containment and delay through general population lockdowns are the most eye-catching and most discussed measures, the bulk of the legislation is more technical and specialised in nature.
The first few titles in the CA2020 deal with health and social care. It seeks to boost available personnel through relaxing health registration requirements so as to allow for the registration temporarily of an extra intake of suitably experienced persons (such as recent graduates or retired personnel) as regulated healthcare professionals even if they lack some formalities of the normal registration requirements. The Act also encourages the recruitment of emergency volunteers by establishing a new form of unpaid statutory leave and powers to compensate for some loss of earnings and expenses. The NHS Volunteer Responders scheme recruited 750,000 people within days of its announcement, three times more than planned. Further encouragement to grow health system capacity is given by the conferment under section 11 of individual indemnity for clinical negligence in some circumstances. Next, death certification and coronial interventions are short-circuited by section 18 by enabling a doctor to certify the cause of death without the death being referred to a coroner. Inquests with juries are also curtailed under section 30.
Second, physical and social security are reinforced by a power to require information about food supply chains (section 25) with a view to potential State intervention (such as through the supply of military logistics). Statutory sick pay is also extended and subsidized. The temporary closure of educational institutions can be (and has been) ordered on a national basis. Various ambitious and ruinously expensive schemes of aid to industry and the furloughing of employees have also been concocted.
Third, personal liberties are affected. The scale of these changes to fundamental legal process is extraordinary and expansive. Various surveillance powers are widened in terms of authorizing authorities for the taking and retention of personal data (sections 22-24). Notably no extra powers have been devised (yet) for population contact-tracing purposes, though an app which collects data centrally is currently being devised and tested by the technological wing of the health service, NHSX. More direct intrusions into civil liberties include regulatory powers to direct the suspension of port operations (section 50), which are intended to ensure border monitoring when short-staffed but could also be applied internally (such as to marinas). Next, public health officers and other officials can enforce quarantining under section 51. Section 52 allows for regulations to ban events, gatherings and the use of communal premises aimed at the apparently healthy general population. Rights of due process are affected under sections 53 to 57, by which various pre-trial hearings may take place by live video links. Early drafts of the supplementary Coronavirus (Scotland) Act 2020 contained extra proposals to abolish trial by jury and to add exceptions to hearsay rules of evidence. This shameful attempt to railroad through fundamental change was rebuffed by outraged Scottish legal professions, but fresh proposals, Covid-19 and Solemn Criminal Trials, have been tabled. Democratic rights have also been affected by powers under sections 59 to 70 and 84 to postpone (as in wartime) pending elections for local authorities, the London mayor, and even the General Synod of the Church of England. Local authority meetings can also be trimmed (section 78). Finally, there are winners and losers in terms of property rights: tenants in the private, social and business rented sectors are protected from eviction for a specified time (sections 79 to 83).
Scanty oversight mechanisms are applied to this expansive legislation. First, by section 97, the Secretary of State must publish every two months a report on the status of the provisions, including a statement of satisfaction that the live status of those provisions is “appropriate,” though according to unstated criteria. Second, by section 98, the House of Commons can debate and vote on the continuation of the Coronavirus Act 2020 every six months based on a motion “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.” This review power is extraordinarily limited. The wording stacks the odds in favor of renewal and banishes the House of Lords from any formal role. The third precaution is that, by section 89, the Act is to expire after two years (and measures can be suspended or revived within that time: section 88). Even so, a “relevant national authority” under section 90 (a Minister of the Crown) can extend the life by regulation for six months at a stretch.
Public Health (Control of Disease) Act 1984 (PHA1984)
A funny thing happened to the CCA2020 immediately after Royal Assent (by which the Queen formally approves legislation passed by Parliament) on March 25. It was ambushed the next day by the PHA1984. Without descending into details, Part 2A of the PHA1984, as inserted by the Health and Social Care Act 2008, followed the experience of SARS in the UK in 2003 and provides powers (under sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P) which authorize the executive authorities to issue regulations which protect against infectious disease. Under these powers, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, SI 2020/SI 350, were issued. Corresponding instruments were issued for Wales, Scotland and Northern Ireland, but with some inexplicable variations. These latest regulations (which have the status of secondary legislation) build upon an earlier regulatory order issued in February 2020 which had been, as might be expected for public health legislation, confined to the detention for screening or treatment of potentially infected individuals.
The extra measures now put in place deal with many activities of the general population and impose remarkable restrictions on general liberty, very similar to those specified in the CA2020. The aim is to enforce working from home where possible and to minimize social interactions, with the aim of achieving 75% reduction in non-household contacts. Therefore, the regulations include the enforced closure of some businesses and restrictions on others (regulations 4 and 5), including entertainment venues, and hotels (with some exceptions). Most draconian of all, under regulation 6, “no person may leave the place where they are living without reasonable excuse” (which might include the need to obtain basic necessities and to travel to work where it is not reasonably possible to work at home). Under regulation 7, public gatherings of more than two people are forbidden. A person who contravenes these requirements commits an offense, punishable by a fine, and the police are given powers to disperse individuals or gatherings and to issue fixed penalty notices (regulations 8 to 10).
These key regulations, though just 11 pages, have been critiqued by several eminent practitioners, especially Lord Sandhurst (and others) in their reports, Pardonable in the Heat of Crisis – But We Needs Urgently to Return to the Rule of Law and Pardonable in the Heat of Crisis – Building a Solid Foundation for Action. They highlight multiple problems: divergences between the CA2020 and the regulations; obscurities in the meaning of the regulations; confusing government and police guidance and excessive police enforcement; and even arguments that some elements are ultra vires. Some technical corrections have since been made by the issuance of amending regulations, but many problems remain.
The resort to these regulations, hot on the heels of the passage of the even more compendious CA2020 (which covers many of the same issues and more besides), seems extraordinary. Part of the explanation may be familiarity. The PHA1984 had already been invoked against COVID-19 (as explained above), and so the need for decisive action could most comfortably be met by resort to that established pathway. In addition, the same eminent lawyers who cast doubt on the vires of the regulations are almost equally skeptical as to whether legal validity or clarity could more securely be delivered under the CA2020. However, familiarity may also breed constitutional contempt, and that contempt may be part of the explanation. The regulations could be, and were, made without any forewarning or public consultation under the emergency procedure set out in section 45R of the PHA1984 – without any draft having been laid and approved by Parliamentary resolution, though a resolution is required within 21 days (the recess period excepted). As a backstop, the regulations will expire after six months (subject to reissuance).
Civil Contingencies Act 2004 (CCA2004)
The CCA2004 represents a legal landmark. It consolidated and expanded legal duties and powers to ensure that public authorities prepare for, and respond to, a wide variety of risks as set out in the National Risk Register (pandemic influenza is top of the list). While the CCA2004 was impelled by domestic and global crises, it was not enacted in haste but benefited from a prolonged consultation period led by a special parliamentary joint select committee. The CCA2004 systematically furnishes executive bodies with duties to plan and cooperate (Part 1) and with all conceivable powers to respond to an ‘emergency’ (Part 2), subject to vital legal and parliamentary oversight to avert improper responses. The widest range of risks is addressed: terrorist attacks, protests, environmental events – and human and animal disease pandemics. Consequently, there already existed legislation designed to tackle the circumstances of COVID-19 which indubitably qualifies as an emergency. Yet, the government has resorted to alternative legislation. Why?
Part II of the CCA2004, “Emergency Powers,” is most relevant for present discussion. Section 19(1)(a) defines an “emergency” as including “an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region.” Calamities such as pandemic influenza were expressly considered during debates. That occurrence qualifies as threatening “human welfare only if it involves, causes, or may cause” one or more of a series of outcomes under section 19(2). At least three of the items on the list that follows arise from COVID-19: “loss of human life;” “human illness or injury;” and “disruption of services relating to health.” Several other threats to “human welfare” are also relevant. In short, COVID-19 is a qualifying “emergency.” This finding underscores the point that there was existing and largely sufficient legislation in place to address the COVID-19 crisis without resort to an entirely new emergency framework such as the CA2020.
Under section 20, “emergency regulations” can be issued when the further conditions of section 21 are “satisfied” in the mind of the executive officers, subject to a declaration of necessity, appropriateness, proportionality, and compliance with human rights. Section 21 reiterates that the issuance of regulations requires an emergency to be taking place, or to be about to occur, and that it is necessary “to make provision for the purposes of preventing, controlling or mitigating an aspect or effect of the emergency.” Existing legislation must be unsuitable or considered potentially ineffective. Section 23 repeats the criteria of appropriateness and proportionality, adds the need for geographical limitation, and specifies other specific curtailments: no forced military service, no banning of industrial strikes, no new indictable offenses or changes to criminal procedures, and no amendments to the CCA2004 or to the Human Rights Act 1998. Overall, the government back in 2004 emphasized the notion of a “triple lock” – that restraints will be imposed on emergency regulations by reference to seriousness, necessity, and geographical proportionality. However, that notion is expressed without objectivity in any of the tests – the minister is allowed to use powers on the basis of bare “satisfaction.”, a standard which is notorious for encouraging unfounded intrusions into basic liberties as illustrated by wartime detention powers (and highlighted in Liversidge v Anderson [1942] A.C. 206).
Subject to these criteria and limits, section 22 provides that emergency regulations can “make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative.” The listing of potential uses – which itself is not exhaustive – is sweeping. As a result, the potential coverage of the CCA2004 is far broader than other legislation and less susceptible to challenge than for the CA2020 or the PHA1984. The only possible obstacle to its operation in the circumstances of the COVID-19 emergency is that CCA2004 regulations are not permitted to “alter procedure in relation to criminal proceedings” (section 23(4)(d)), whereas the CA2020 (section 53 and Schedule 23) allows live video links in court proceedings, including in criminal cases. But this obstacle to the use of the CCA was never mentioned in the Parliamentary debates and surely could have been overcome by simple primary legislation. Aside from this drawback, neither the declaration of emergency under the CCA2004 nor the potential list of regulations necessarily demands the further politically distasteful issuance of a derogation notice under article 4 if the International Covenant on Civil or Political Rights or article 15 of the European Convention on Human Rights. That further step depends on the impacts of invoked regulations; unlike many other countries, the U.K. government has asserted that its COVID-19 legislation to date is compatible with human rights. Time will tell if that assessment is wholly correct, but at least the superior oversight safeguards under the CCA2004 (as shall next be described) make it more likely than for other legislative platforms that its usage will be invoked only “to the extent strictly required by the exigencies of the situation.”
Where the CCA2004 excels compared to its COVID-19 legislative rivals is that it better avoids the disdain which they show for constitutionalism. By comparison, precautions in the CCA against excessive usage or a lingering life are far more extensive and effective. They include (section 26) that each emergency regulation remains in force for a maximum of 30 days (though a new regulation can then be issued). In debates on the CA2020, the Government Minister dismissed that timeframe as too short, but it is short precisely to ensure sufficient public accountability.
Regulations must be laid before Parliament “as soon as is reasonably practicable” (section 27); if each House has not expressly approved a regulation within seven days of being laid, it falls, and Parliament can also later by resolution annul or amend a regulation. If Parliament is prorogued or the Commons or Lords adjourned when a regulation is issued and would be unable to consider it, the monarch or the relevant Speakers, respectively, must reconvene the sitting (section 28). A less powerful, but still notable, prerequisite is that the government must “consult” with the devolved executives in Scotland, Wales, and Northern Ireland, unless obviated by pressing circumstances (section 29). This consultation is important since social, economic, and even legal circumstances can differ from England. Emergency regulations are to be treated as “subordinate legislation” under the Human Rights Act 1998, even if “they amend primary legislation” (section 30). Thus, a court can annul a regulation if found incompatible with the European Convention on Human Rights, thereby going beyond a mere declaration of incompatibility. The present government’s election Manifesto 2019 (p.48) expressed some distaste for the Human Rights Act and, beyond that, the powers of judges by way of judicial review. Perhaps another reason for avoiding the CCA2004 was to preclude more vigorous oversight via these mechanisms.
As well as Parliamentary oversight mechanisms, the CCA2004 provided for expert consultation regarding the setting up of tribunals (section 25 – since abolished by the Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013, SI 2013/2042). More importantly, section 24 requires the appointment of “Emergency Coordinators” for Northern Ireland, Scotland, and Wales, and ‘Regional Nominated Coordinators’ for each region of England. The principal purpose shall be to facilitate coordination of activities under the emergency regulations. They are subject to directions and guidance by ministers but in turn can override local authorities. In their absence (as has now occurred), the stage is open to political opportunism by devolved or local politicians and police chiefs and to a lack of audit over whether action is being evenly or adequately undertaken across the land.
The CCA2004 may yet come into play. It copes with disruptions to constitutional order and everyday life beyond the capabilities of its rivals, thereby avoiding further primary legislation and legal challenges. Overall, the CCA2004 represents a carefully debated and designed legislative exercise. A Civil Contingencies Act Enhancement Programme review was commenced in 2011, but the conclusion of the Report of the post implementation review of the Civil Contingencies Act (2004) (Contingency Planning) Regulations 2005 in 2017 was that no major change was required. Part 1 of the legislation has prompted considerable and much improved planning and resilience efforts, and the fact that Part 2 had never been invoked was a reflection of the success of Part I as well as of the effective safeguards written into Part 2. However, now that a true emergency has undoubtedly arisen, the government has shirked from the appropriate invocation of Part 2. This failure may relate to a lack of capacity or competence in the Cabinet Office, which should provide the hub of emergency management but has been missing in action in terms of clear coordination and messaging. However, these administrative and legislative failures may have been compounded by the political desire to avoid more stringent oversight and accountability by the resort to more malleable powers under the PHA1984 and the CA2020.
Legislating for emergencies: ‘Sectoral’ v ‘General’ Legislation
The contention that constitutional safeguards have been neglected might be mitigated if the PHA1984 or CA2020 could be depicted as “sectoral” legislation rather than “emergency” legislation. This line of argument was made by the New Zealand Law Commission in its First Report on Emergencies (1990) and Final Report on Emergencies (1991). The Commission recommended that emergency powers should, whenever possible, be conferred by “sectoral legislation” – legislation deliberated upon and designed in advance of the emergency and tailored to the needs of each kind of emergency.
If a “sectoral” approach can be properly adopted, then the full majesty of the CCA2004 would not be required, and well-tailored public health legislation could instead apply. Indeed, more targeted legislation could meet more precisely the public health needs of society, not only in response to COVID-19 but with a view to whatever future viruses, contagions or diseases might emerge. However, the PHA1984 and the CA2020 cannot truly be categorized as sectoral legislation, and certainly not well-tailored sectoral legislation, because they lack at least four essential features. First, sectoral legislation should be limited to a “sector” so that the relevant stakeholders and even the public can be engaged in the shaping and running of the legislation. However, the PHA1984 and the CA2020 cover multiple sectors and embody no consultative mechanisms. The second feature of sectoral legislation is time to consider, debate, and consult. It should follow the usual public and Parliamentary timetable for debate and can utilize the usual structures for implementation (consultative/advisory bodies; and draft proposals). These alternative models afforded no time or opportunity or nearly none. The third feature of sectoral legislation might be depicted as “WYSIWYG”: What you get is what you see. The details are set out largely on the face of the sectoral legislation rather than future regulations which are less amenable to scrutiny. In this aspect, the alternatives contain very broad regulation-making powers with fewer constraints than the CCA2004. The fourth feature of sectoral legislation should be post-legislative oversight. Yet, the alternatives are no more amenable to review than the CCA2004 – less so in some aspects.
Conclusion
A public health emergency has arisen, and legislative responses should be comprehensive and even unpalatable. But whether the PHA1984 and the CA2020 offer the best medicine can be disputed. These models of emergency legislation contradict the wishes of Parliament’s better self, as represented by the CCA2004, and contradict the considered warnings of the House of Lords Select Committee on the Constitution in its report, Fast-Track Legislation: Constitutional Implications and Safeguards (2008–09 HL 116). As experienced with special legislation against terrorism, an uphill struggle now looms to control the COVID-19 state.
The legal mess now delivered has been mitigated to date by the sensible compliance of the public and the calming down of the police. Even so, the CCA2004 should have been selected to govern the emergency stage of lockdown in preference to the more rushed and less accountable alternatives. Thereafter, more permanent sectoral laws should be designed for the lengthier recovery stages. Otherwise, the current legislative models will stand testament to panic and form part of the problem rather than the solution. Consequences of the failure to embody constitutionalism will include needless damage to civil liberties and an emboldened executive with the ability to ride roughshod over democracy.