Are we being treated like ‘naughty children’? Or are we in the midst of a global crisis that calls for ‘authoritarian rule’?
Are you, like many, questioning the restraint on our freedom of movement, ability to see people, and the obligation to wear face coverings (unless exempt) during coronavirus? Are you wondering about the legality of it? There is significant controversy surrounding ‘lockdown laws’, including about whether they comply with the rule of law, promote democracy, and infringe our human rights.
Parliament recently considered issuing a motion of regret on the temporary provisions of the Coronavirus Act. If successful, it would have meant that Parliament officially put their concerns on record and called on the government to discontinue the temporary provisions of the Act.
The law gives the government a certain range of powers to restrict our freedoms if the measures taken are in order to protect the public from threats which present or could present ‘significant harm to human health’. To understand more about just how far the government is permitted to control your behaviour and actions, keep on reading.
What is the difference between guidance and the law?
There is significant confusion about what we must do as required by law, and what we are merely advised to do as best practice.
The regulations that came into force on the 26th March 2020, during the first lockdown, did not place restrictions on the number of times an individual can carry out an exempt action. Put more simply, for example: you could leave the house multiple times using the non-exhaustive list of excuses (like exercise), but the advice was to leave your home no more than once per day. The police are to exercise common sense, so if you were on your 4th run of the day, they may be more likely to consider the run slightly suspicious, unreasonable and therefore use their enforcement powers (such as issuing fines). However, it was not illegal, and the police can only enforce the law, not guidance.
A further example is the guidance to wear a mask in outdoor public spaces where it is not possible to social distance. It is advised, but if you do not do so, you cannot be prosecuted or fined. The difficulty this uncovers is that people believe certain actions taken by the Government are within their powers, but they are not. The average lay person does not understand the distinction between guidance and law and sources of information online can be misleading and inaccurate. This was pointed out by Baroness Stroud in the House of Lords debate on a motion of regret for the temporary provisions of the Coronavirus Act 2020. This is important because the law should be clear and certain in order to allow individuals to regulate their behaviour accordingly.
What powers does the Government have during an emergency situation?
The current pandemic is a situation that allows the government to invoke the urgency clause in the Public Health (Control of Diseases) Act 1984. Under this legislation, the government may take measures to protect the public from the threat of an infectious disease. They create regulations to control the spread of a disease without prior parliamentary scrutiny, Parliament must then approve the regulations within 28 sitting days, this is the made affirmative procedure.
The Coronavirus Act 2020 was enacted on the 25th March after 1 day of parliamentary debate. The Coronavirus Act has three main aims: “to give further powers to the government to slow the spread of the virus”, “to reduce the resourcing and administrative burden on public bodies”, and to “limit the impact of potential staffing shortages on the delivery of public services”. The government now uses this as the basis for creating regulations to control the spread of the virus.
How far does this power go?
This power is not unlimited. Whilst the new regulations may affect fundamental rights, they must still be consistent with the Human Rights Act 1998, as Harman commented: ‘[t]his is an unprecedented and uncertain time for everyone, and the government must act in a justifiable, fair and proportionate way.’
In order to be consistent with the Human Rights Act, the government must demonstrate that it acts with justifiable reason, and that the way it responds is proportionate to the threat presented. So as not to undermine its legitimacy, it is in the interests of the Government to ensure that any emergency restrictions on rights are “necessary, proportionate, legal and time bound”.
What has the Coronavirus Act accomplished?
The Coronavirus Act has allowed financial support provisions to be enacted (such as the Job Retention scheme), the NHS Bring Back Staff scheme to be brought in, regulations to be brought in that aim to contain the virus (such as banning mass gatherings, and forced quarantine in appropriate situations). These have alleviated some of the immediate impacts of the pandemic.
It also meant that responses comprising of new regulations could be expedited. Lord Bethell in the House of Lords commented that the speed of the virus is ‘astonishing’ and that Parliament’s processing slows down the introduction of potentially life-saving regulations. Although, Baroness Ritchie of Downpatrick believes the government has been ‘rather too eager’ to label Parliament’s scrutiny ‘inconvenient’. Those in the House of Lords disagree on how far Parliament should be involved, demonstrating the controversy when deciding where the balance lies.
What are some current grievances about the Coronavirus Act 2020?
The Health Secretary, Matt Hancock, promised the House of Commons that for significant national measures that affect the whole of England or are UK-wide the government would firstly, consult Parliament, and secondly, hold votes where possible before they come into force. However, there is disagreement as to whether the government is being held to account by Parliament as effectively as possible during the pandemic to ensure a democratic society.
Recently, new regulations seem to be publicised for the first time to the media or at conferences, rather than being put before Parliament, as a check, first and foremost. However, Lord Clarke of Nottingham pointed out that it would lend the government legitimacy and public confidence if Parliament were able to approve regulations before they came into force.
The Joint Committee on Human Rights said that large amounts of legislation were coming into forced before being laid before Parliament. The Hansard Society reported that in the last six months there have been 242 statutory instruments which effectively side-stepped proper parliamentary oversight. Further, Lord Patel commented that SAGE advice given to government to inform their decision-making on coronavirus measures was confidential. This meant the “veracity of science advice underpinning the government decisions could not be challenged.”
Lord McColl of Dulwich highlighted that, 63% of people in the UK believed that the measures taken by the government because of the Act didn’t go far enough. However, this has no bearing on whether the measures have been consistent with human rights and whether the “democratic process has been replaced by authoritarian rule”.
Lord Judge raised several examples of where parliamentary oversight should be sought, but is not being sought. For example, if the government are considering using army personnel on the streets as back up police, or preventing university students from returning home after the first term of university, these situations involve topics that merit debate in Parliament.
The role of Parliament within the rule of law is to keep a check on the power of the government to protect our democracy. Plainly, much of the criticism stems from the fact that the Coronavirus Act allows the government to act without parliamentary oversight, thus endangering the rule of law.
Certain provisions may need amendment or repealing
The Coronavirus Act 2020 can only be reviewed by Parliament once every 6 months, and individual provisions cannot be amended separately. This means that if some provisions are no longer necessary or prove ineffective, they cannot be challenged individually. The whole Act is renewed as it was. Since the Act has been renewed (https://news.sky.com/story/coronavirus-mps-approve-renewal-of-emergency-powers-after-ministers-concede-to-tory-rebels-12086126) Baroness Barker has highlighted that some provisions, which will be kept, undermine public confidence.
One provision that was mentioned multiple times in the House of Lords debate on the unsuccessful motion of regret included the Care Act easements. These removed the requirement for local authorities to carry out detailed assessments of people’s care and support needs, or financial assessments, or prepare or review care and support plans in the same way they had to before the Coronavirus Act. This was intended to alleviate some of the pressure on them in the beginning of the crisis.
Although originally the situation was predicted to last three months, it has become long-term. Thus, some provisions, originally thought necessary and proportionate, are no longer since “pandemic management has moved from reaction to control”. Some in the House of Lords believed these to now ease the responsibilities of local authorities too much.
Lord Bethell highlighted the fact that the easements were only used in 8 localities, and these had all ceased to use them by the end of June. However, be that the case, the provision still exists. While it exists, it poses a threat to the rights and well-being of elderly, disable, and vulnerable people whose care had been cut. Baroness Campbell of Surbiton went so far as to say the provisions are no longer proportionate nor necessary, thus neither is the threat to their rights.
What’s the big deal?
The short answer to the question is, yes, it is legal for the government to make you wear a face covering, and they can place certain restrictions on our liberties. However, the real question is to what extent can they do so under the current framework before it is no longer considered to be necessary, justified or proportionate, and therefore, no longer democratic, in line with human rights nor the rule of law.
The motion of regret on the temporary provisions of the Coronavirus Act was defeated 99 to 198. It shows the opinion of the majority of the House of Lords that, whilst there are threats posed by the Coronavirus Act and the powers it gives to the government, these are necessary in such extraordinary times. It echoes the sentiment of the renewal of the Act: keep the existing legislation with its flaws rather than have to rewrite a new piece of legislation during difficult times on a such a divisive topic.
Lord Bridges of Headley believes that the issue was one of “the exercise of power, pure and simple”. The times warrant an approach that stands up to the urgency of the situation. However, Parliament still has a responsibility to scrutinise the government’s proposals and actions that is not currently being facilitated.
Lord Bethell summed up the overwhelming opinion of the motion of regret in his last comment: “we need to strike the right balance. We think we have hit the right balance; it will not keep everyone happy, but we are determined to defeat this virus and get our lives back”. Although the motion of regret was defeated, certain provisions of the Coronavirus Act were still informally considered regrettable by many in the House of Lords. Many provisions are unsatisfactory and may infringe civil liberties, however, it is important to consider the renewal against the highly pressured backdrop of a highly contagious pandemic that doesn’t wait for Parliamentary checks.