The latest critique of the Coronavirus Act 2020
13 May 2020
The UKHRB has been at pains to cover all aspects of the CA2020, the various sets of regulations and guidance made under it, in a balanced manner. You will recall that I drew attention to two papers published by Lord Sandhurst (Guy Mansfield QC, formerly of 1 Crown Office Row) and others raising concerns about the constitutionality and legality of these regulations: “Pardonable in the heat of crisis- but we must urgently return to the rule of law.” , followed by “Pardonable in the Heat of Crisis – building a solid foundation for action”
Somewhat stronger wording features in the latest paper on this theme, co-authored by Professor Clive Walker of the University of Leeds and Andrew Blick, Director of the Centre for British Politics and Government at King’s College London: “Coronavirus Legislative Responses in the UK: Regression to Panic and Disdain of Constitutionalism”
As with the earlier papers, I would urge our readers to go to the original article rather than relying on the very brief summary below.
In short, Walker and Blick, like Lord Sandhurst et al, argue that neither the Coronavirus Act 2020 nor the Public Health Act 1984 are necessary or fit for purpose in current circumstances. In their pungent concluding paragraph, the authors point out that
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.
Why? Because once draconian measures are put in place, and the public is panicked and tamed, “an uphill struggle now looms to control the COVID-19 state.” We experienced this with special legislation against terrorism, and the authors warn that the COVID-19 state is no different, in fact the rush to pass the law and regulations that underpin it, it is worse. What alternative did the government have? The more considered Civil Contingencies Act 2004, which, the authors argue, should have been selected to govern the emergency stage of lockdown in preference to the more rushed and less accountable alternatives. Thereafter, the more permanent laws that lie in our statutory toolkit “should be designed for the lengthier recovery stages”. Otherwise, the the authors warn that 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.
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