Lockdown: A Response to Professor King — Robert Craig
6 April 2020
This post analyses the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government. The movement restrictions themselves are vital to the protection of life in the current crisis and must be adhered to by all persons. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny of the associated regulations is warranted but should not be taken to question the undeniable imperative to follow that guidance.
In two recent posts for the UK Constitutional Law Association (here and here), Professor Jeff King has set out a focused analysis of key elements of the recent Regulations (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8)) that purport to place severe restrictions on the ability of ordinary citizens to leave the place where they are living.
Prof. King argues that these regulations are within the scope of the powers granted to make such Regulations under the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’) as amended. They were passed under the emergency procedure set out in s 45R which means they were not approved by Parliament due to the urgency of the situation.
In this post I make the contrary argument: that the Regulations go well beyond the powers under Part 2A of that Act. I support this claim using only traditional vires arguments. It is also of course the case that the legality of these Regulations also falls to be determined by whether they violate the right to liberty under Article 5 ECHR, located in Schedule 2, Human Rights Act 1998. That issue warrants separate consideration, which I do not seek to undertake in this post.
The relevant parts of the Regulation and underlying legislation
For our purposes, the material words are located in s 6 of the English Regulations.
6 (1) During the emergency period, no person may leave the place where they are living without reasonable excuse.
These Regulations were made under Part 2A of the 1984 Act which was inserted by the Health and Social Care Act 2008 (‘the 2008 Act’) following previous less serious epidemics including SARS. The two most relevant sections for this post state (emphasis added):
45C(3)(c) Regulations under subsection (1) may in particular include provision… imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.
45C(4)(d) The restrictions or requirements mentioned in subsection (3)(c) include in particular … a special restriction or requirement.
Justices of the Peace
As King usefully points out, ministers proposing the 2008 legislation in parliament ((HL Debates, Vol. 700, Col. 452 (28 March 2008)) claimed that the legislation ‘provided significant safeguards… to protect individuals’. The evidence for this claim can be seen most obviously in the fact that restrictions imposed on individuals should normally be explicitly justified in front of a justice of the peace, in open court, by a local authority in accordance with strict criteria laid out in the Act. These can be found in sections 45G-O.
This legislative approach respects the finest traditions of English constitutional law with roots that go all the way back to Entick v Carrington. It is an important constitutional principle that powers to interfere with the liberty and property of the citizen should normally be explained and justified to the judicial branch by the executive, certainly in peace time. This is a basic requirement of the separation of powers.
Executive powers in urgent situations
With admirable foresight, those drafting the 2008 Act realised that there may be urgent situations where it is simply impracticable for local authorities to seek orders from justices of the peace against suspected infected individuals. The Act therefore created a mechanism for ministers in urgent situations to be able to make regulations that confer on the executive the power to impose most of the same restrictions on suspected infected individuals that could be made from the Bench. It would appear that these powers were designed to be held in reserve for those rare occasions when urgent action is required and the fundamental constitutional principle of the separation of powers would necessarily have to be compromised for a brief period.
Crucially, however, some of the most serious restrictions that justices can impose after a hearing are not available to the government no matter how urgent the situation. There are obvious reasons for this given the civil liberties implications. The powers not available are laid out in 45G(2)(a)-(d). Importantly, “P” refers to an individual who ‘may be infected or contaminated’ [s 45G(1)].
45G(2) (a) that P submit to medical examination;
(b) that P be removed to a hospital or other suitable establishment;
(c) that P be detained in a hospital or other suitable establishment;
(d) that P be kept in isolation or quarantine;
It is therefore strongly arguable that the intention of Parliament in the 2008 Act was that executive powers relating to individual liberty should be a more limited version of the powers granted to justices in sections 45G-O. The limitations were clearly drafted to respect long standing traditions of individual freedom, in particular the incendiary decision to put someone into isolation or quarantine, or removing them to an institution against their will, even if they may be infected.
The intention of the 2008 Act
Further evidence that the 2008 Act intended that powers available to the executive under this Act should be strictly circumscribed was highlighted in a recent note from the House of Lords Library (Emily Haves) which states that the then government was questioned as to why the extra powers inserted by the 2008 Act ‘required different parliamentary scrutiny to those in the Civil Contingencies Act 2004’.
The Library sets out the answer given by the executive which was that actions under the amended 1984 Act might be urgent but ‘minor in scope and effect’, going on to draw attention to the government’s further answer that
recalling Parliament to debate and approve them within seven days [under the CCA 2004] would “send the wrong signals to the public”, and might not warrant preferential treatment over other parliamentary business.
If there is one thing that can safely be said about the recent Regulations, it is that they are not ‘minor in scope and effect’ and they would certainly have warranted preferential treatment on the parliamentary order paper. One slightly puzzling aspect of this saga is the decision not to add the provisions in the Regulations to the Coronavirus Act 2020, which was rushed through in a matter of days and received Royal Assent at 5.30pm on the day before these Regulations were made.
The terms of the 1984 Act as amended, particularly those that restrict movement, are aimed at people who may be infected with a disease that forms a threat to public health. A good example of Regulations that conform to this principle can be found in February 2020. The attempt on the face of the latest Regulations to claim that the measures are ‘proportionate’ and ‘seek to achieve… a public health response’ is unpersuasive in justifying their use to place severe restrictions on movement onto the entire population of the country, rather than simply those who may be infected with the virus.
It must further be noted that the Regulations do not make any provision for appeals against any decisions, for reasons that are not obvious given s 45F(2)(e) which is listed in Part 2A of the 1984 Act (‘45F(2) Health protection regulations may … (e) provide for appeals from and reviews of decisions taken under the regulations’). Whilst provision for the right to appeal against a decision under the Regulations is not mandated in that particular subsection, it is disappointing that no general recourse to the higher courts is explicitly included in the Regulations.
Furthermore, the Regulations appear to be in breach of s 45F(6) which again reinforces the view that the intention of parliament concerning measures relating to individual liberty and property are subject to particular legal scrutiny and accountability:
45F(6) Regulations under section 45C must provide for a right of appeal to a magistrates’ court against any decision taken under the regulations by virtue of which a special restriction or requirement is imposed on or in relation to a person, thing or premises.
Prof. King understandably relies on s 45G(2)(j) to justify the special restrictions on movement in the Regulations because that section relates to restrictions ‘on where [a person] goes or with whom [a person] has contact’. He links this to s 45J which states that ‘a person’ also includes ‘groups of persons’. The problem for this argument is that there is an enormous difference between ‘groups’ of people who ‘may be infected’ [s 45G(1)(a)], such as those on a cruise ship, or a family or a care home and these provisions which purport to apply to the entire British public.
The claim that the entire general public constitutes a ‘group’ that ‘may be infected’ is not persuasive. On the contrary, the premise of the Regulations is that the vast majority of the public are not infected. That is the whole point of imposing the restrictions. The real problem for Prof. King’s argument is the very fact that 45J is expressly linked to s 45G, which as we have already seen only relates to persons who ‘may be infected’, not the public as a whole.
Further evidence of the limited nature of the power available to the executive under the 1984 Act can be found in s 45C(6).
45C(6) For the purposes of this Part— (a) a “special restriction or requirement” means a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2),45H(2) or 45I(2)
It is submitted that this demonstrates that Parliament intended that ministers using Regulations cannot impose wider restrictions than can be imposed by justices of the peace. There is no power granted to justices of the peace to impose restrictions on the entire population. Under the Simms principle, such a power would require the clearest possible wording and that is simply not present in the legislation. Hence the Regulations would appear to be ultra vires.
It might be argued that s 45C(3) and (4) only say that measures may ‘include’ provisions that contain ‘special restrictions’ [s45D(4)], leaving open the possibility of other ‘super-special’ restrictions available to the minister that are not constrained as per s 45C(6). However, given the whole tenor of the Act appears to be aimed at limiting the power of the executive to impose special restrictions that affect liberty and property even on people who may be infected, this would be a very strained reading of the Act. In any event, the minister expressly purports to rely on s 45C and 45D on the face of the Regulations for the special restrictions imposed, not on any other alleged wider power to impose other types of restrictions under the 1984 Act.
It is therefore difficult to see how the de facto house arrest of the entire population of the country, even with the listed exceptions, could be imposed on the general public by virtue of s 45C(3)(c) and s 45C(4)(d) of the 1984 Act on any orthodox construction. This is without even mentioning the interpretative rule that these kinds of provisions would be construed narrowly in favour of liberty under the legality principle.
It might have been preferable for these measures to have been introduced in an Act of Parliament or, better, the emergency provisions of the Civil Contingencies Act 2004 (‘CCA’) with the democratic safeguards that are built into those draconian powers.
The Civil Contingencies Act 2004
The CCA can be triggered if there is an ‘emergency’ which for our purposes is defined in s 19(1)(a) as ‘an event or situation which threatens serious damage to human welfare in the United Kingdom’ because it causes ‘loss of human life’ and ‘human illness’ [s 19(2)(a) and (b)].
The Act therefore specifically references emergency scenarios affecting human welfare resulting in loss of life and human illness. A major pandemic must surely constitute the paradigm example of such a scenario. Certainly, some media reports suggest that those in government have long considered the possibility of a major pandemic as being at the top of the list of realistic potential threats to human welfare.
When considering the legislative ‘structure’ in the round, the CCA might therefore be thought to sit ‘behind’ the 1984 Act, designed to be used only for the most serious health emergencies that require measures that go beyond restricting the movement of those who may be infected. If not now, when?
The CCA contains a series of mechanisms to secure democratic accountability and regular parliamentary approval for just the kind of provisions ‘to protect human life, health and safety’ and ‘treating human illness’ that have been imposed under these Regulations [s 20, and s 22(2)(a) and (b)]. In particular, provisions will lapse after 7 days unless parliament approves them in a resolution [s 27(1)(b) CCA]. They also lapse automatically after 30 days.
By contrast, there is less ongoing scrutiny of these Regulations under s 45R of the 1984 Act because they are only required to be approved once – by a resolution of Parliament (or the National Assembly of Wales) within 28 days [s 45R(4)]. Furthermore, and crucially, those 28 days do not include days when Parliament is prorogued, dissolved or adjourned (or in recess for Wales) for more than 4 days [s 45R(6)]. The ‘28 days’ could potentially last a long time in the current circumstances.
Although regulations under the CCA may lapse, that does not prevent new regulations being passed [s 26]. The regulations can contain anything that could be contained in an Act of Parliament [s 22(3)].
Adjourning Parliament during the greatest peace time crisis in living memory
We now face a monumental crisis, yet Parliament is adjourned. It is of course true that the first consideration must be the safety of MPs and ministers who are public servants, some of whom may have underlying medical conditions. Thankfully, there now appear to be serious moves afoot to create online virtual procedures so that MPs can hold ministers to account, following the lead of other Westminster systems including New Zealand. Some of the important issues raised are usefully discussed by Sir David Natzler, former Clerk of the House of Commons, here.
It remains to be seen whether these moves can be extended either to pass a remedial, perhaps retrospective, Act or fulfil the requirements of the CCA, in the event that it is triggered. Indeed s 28 CCA requires the House of Commons to ‘meet’ within 5 days if Regulations are passed under s 20 CCA. There is no reason in principle that this cannot happen online, even if it starts out as only a quorum of 40 or more MPs rather than all 650.
Huge swathes of the public and private sector have moved quickly to working online. Parliament must now do so as well. It is not really appropriate in a liberal democracy for the only accountability in this situation to be from unelected, mainly London-based, journalists. The urgency of the necessity for democratic oversight by MPs of ministerial actions increases not decreases as the severity of this crisis grows.
This post has argued that these Regulations cannot lawfully be grounded in the 1984 Act. In the event of litigation, the normal remedy would be a quashing order. In the current circumstances, however, it is inconceivable that such a remedy would be sought by any responsible barrister. It will be recalled that remedies in judicial review are in any event discretionary.
Instead, a mere declaration would be more than sufficient. Such a declaration would give the government the opportunity to take steps to impose necessary restrictions through a more robust legal route, backdated if necessary. It must also be remembered that litigation is always uncertain, and it is conceivable that judges might take a generous view of the vires of the Regulations given the circumstances.
These Regulations are the most momentous peace time restrictions on the liberty of individuals to freely go about their business for centuries – possibly ever. No such equivalent provisions were passed even in the last serious pandemic a century ago despite very serious loss of life at that time. They raise very serious constitutional concerns. Even though the Regulations currently have strong public support, the legal underpinnings of the provisions are so thin it is difficult to see how their vires can remain unquestioned.
In particular, the assumption that Regulations under the 1984 Act can impose greater restrictions than available to justices of the peace against suspected infected individuals must be seriously doubted. This is before the question of ‘quarantine’ is even considered, although it is clear that ministers cannot impose quarantine even on infected people. Whilst these measures may not amount to quarantine, they are certainly ‘special restrictions’.
The idea that ministers can use the 1984 Act to impose ‘special restrictions’ on non-infected people, never mind the public as a whole, must be seriously questionable. There appears to be a strong case that the Regulations are ultra vires.
Robert Craig is AHRC PhD Candidate and tutor in law, University of Bristol. He tweets @RobertCraig3
For reasons of space, this post has not sought to address the detailed provisions of the Coronavirus Act 2020, Human Rights Act 1998, and Article 5(1)(e) ECHR.
The author would like to thank Gavin Phillipson, Jeff King, Tom Poole, Colm O’Cinneide, Stephen Laws and Alison Young for helpful comments on previous drafts.
The Blog has also considered another aspect of the legality of the Coronavirus Regulations here.
For further updates, you can subscribe to the Blog here.