UK: Coronavirus Act – Questions start to appear

The Coronavirus Act 2020: When Legislation Goes Viral (Part One)

2 April 2020 by darraghcoffey

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 of this blog 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 blog post. Therefore, this is the first of two blogposts on this subject. In this post I explore why this legislation was considered necessary and consider some general aspects of the Act. In a second post, 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 and founder of this Blog 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 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.

Darragh Coffey is a barrister at 1 Crown Office Row. He tweets @darraghcoffey