I began drafting this article – or, an earlier version at least – in April when we were just a couple of weeks into the first lockdown. At that point the scope of the article was broad. It was intended as an overview of the coronavirus legislation, and the offences that were being created practically on a whim of government. There were concerns raised even at that early stage of some police forces acting beyond their powers. Lord Sumption, the retired Supreme Court justice, was the most prominent early public voice of criticism, and described for example the actions of the Derbyshire Constabulary – who sent drones to take photographs of solitary walkers in the Peak District, and then publicly shaming them – as “disgraceful”. Northamptonshire Chief Constable Nick Adderley threatened in those early days that his Force would check shopping bags to ensure the public was not buying unnecessary items from the shops – leaving the house for unnecessary things being, of course, prohibited. On the 16th of April the National Police Chiefs’ Council and the College of Policing issued guidance to officers in England that travelling in the car for exercise was reasonable, so long as the period of exercising at the other end of the journey was not disproportionately short compared to the journey itself, but on the same day Assistant Chief Constable Alan Todd in Northern Ireland (with the same regulations as England) declared that travelling for exercise was a breach of the regulations. Chaos and lack of clarity abounded.
One example of the police acting beyond their powers was reported by the BBC as a fait accompli in favour of the lockdown, headlined “Barbecue and crisps – the lockdown rule-breakers”. The article may be accessed here: https://www.bbc.co.uk/news/uk-england-52033324 . The article was written on Wednesday 25th March but referred to an event on Tuesday 24th. The article reported that police had broken up a group of people having a barbecue on that Tuesday. The article also reported that “police are receiving many calls about breaches of the lockdown”, were being called out to “groups of people sunbathing”, and were being given “unbelievable excuses” for being outside on that Tuesday, such as going to buy a bag of crisps. It is beyond the scope of what I am writing to consider the circumstances in which police questioned shoppers on that Tuesday to find out that they were “only” going to buy a bag of crisps, but it does not take much imagination to see that such circumstances might properly raise an eyebrow against the behaviour of the police. The point – and the problem – is that the lockdown that the police were seeking to enforce on that Tuesday – and that the BBC were reporting on that Wednesday – was not law (and no such offences existed) until 1pm on Thursday – the day after the article was written, and two days after the police forcibly broke up the barbecue. If you have read the article linked to above, please note that I make no comment about the police breaking up a “lock in” at a pub – businesses at the time were subject to different, and earlier, regulations. But for the rest, the “breaches” discussed were merely breaches of the diktats of the Prime Minister who had given his first lockdown speech on Monday 23rd March 2020. He worded his speech carefully, giving the impression of immediacy, but (and I may be washing my mouth out with soap in ten years for writing this) we do not yet live in a country governed by diktat.
The Crown Prosecution Service (CPS) found in a review published on 15th May 2020 that every single one of the 44 prosecutions of the offences created by Section 51 and Schedule 21 of the Coronavirus Act 2020 (relating to potentially infected persons) (note that this is not the legislation that brought in the lockdown – that was brought in by regulation, not primary legislation – more about that later) every single one of the 44 prosecutions of those offences had been incorrectly charged (https://www.cps.gov.uk/cps/news/cps-announces-review-findings-first-200-cases-under-coronavirus-laws). By 16th July that number had risen to 89 (https://www.independent.co.uk/news/uk/crime/coronavirus-uk-laws-act-break-prosecution-police-a9622361.html). By 29th September to 141 (https://www.independent.co.uk/news/uk/home-news/coronavirus-act-vote-parliament-wrongful-prosecutions-offences-repeal-b696390.html). These offences do not relate to offences against lockdown generally, but only to “potentially infected persons”, but they have been incorrectly applied (and, it seems, continue to be so) as though they were part of the state’s arsenal for the enforcement of general lockdown regulations.
The distinction between the lockdown offences (brought in by regulation), and the provisions of the Coronavirus Act 2020 is important. Primary legislation – laws voted on and passed by Parliament – is traditionally the usual way of passing legislation in this country. The Coronavirus Act 2020 is an example of primary legislation, and it largely came into force on the date of receiving Royal Assent, on Wednesday 25 March 2020, and dealt with issues such as registration of doctors and nurses, postponement of elections, extension of time limits for the storing of DNA samples and fingerprints, extension of notice periods for evictions, and the storage and mass disposal of dead bodies. Secondary legislation, on the other hand, is legislation created by Ministers of the Crown, and is made by Statutory Instrument. The Minister in question will have been enabled by an earlier piece of primary legislation to create secondary legislation. You may be familiar with Henry VIII powers for example – these are powers inserted into Acts of Parliament (primary legislation) enabling a Minister to repeal or amend that legislation without having to go back to Parliament. Such repealing or amending is an example of secondary legislation at work.
I stumbled across an outstanding YouTube video in September – very short, only 6 minutes, and well worth a watch. It is from the Financial Times and is entitled “Is the UK Moving Towards Government by Decree?”, accessible at: https://www.youtube.com/watch?v=_nFvGWv1uJ8. It outlines the increasing use of Statutory Instruments in the United Kingdom. In fact, many of the issues dealt with by the Coronavirus Act 2020, as discussed above, are dealt with (at least in part) by the enabling of Statutory Instruments. The phrase, “the Secretary of State may by regulation make…” comes up again and again. The issue with Statutory Instruments, as explained in the video, is that our system of government, and the overwhelming predominance of the House of Commons which in turn (most of the time) is overwhelmingly dominated by the largest party which is (inevitably) controlled by the Government of the day, allows the Government to enable itself to make law without the proper oversight of Parliament, and without the risk that Parliament is going to repeal its secondary powers (not least because, practically, the Government of the day also controls Parliament’s timetable). The benefit of Statutory Instruments is that they give flexibility – and as the video states, “the Government will always have some plausible pretext for using Statutory Instruments – public health, terrorism, Brexit – there will always be something that will get people to nod along with the idea that the Government should be able to legislate in a so-called “flexible” way”.
The coronavirus lockdown has been created – and its criminal offences have been created – by Statutory Instrument. The most recent lockdown has been imposed by way of Statutory Instrument 2020 No. 1200, The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, which have come into force on Thursday 5th November 2020. It is true that these regulations have been voted through Parliament, but there has been no real opportunity for Parliament to debate the measures in any serious way. Indeed, when the former Prime Minister Theresa May – who abstained from the vote – stood to gently criticise the Government’s handling of the passage of this legislation, Boris Johnson stood up and marched out of the Chamber. The video of this incident, and Mrs May’s speech, may be viewed here: https://www.youtube.com/watch?v=Lm-_A9LVYi8. The whole array of lockdown measures has been imposed by Statutory Instrument, and the Financial Times video highlights one example: that the rule that no more than six people from different households may gather together (“the rule of six”) was introduced with only 30 minutes’ notice. This rule was brought in by (and I apologise for this) The Health Protection (Coronavirus, Restrictions) (No.2) (England) (Amendment) (No.4) Regulations 2020, which amended The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020.
The first set of principal regulations, made back in March and introducing for the first time the unprecedented lockdown measures, came into force immediately that they were made by the Government (at 1pm on Thursday 26th March), an hour and a half before being laid before Parliament, which is the first time parliamentarians officially got to even read the document that had by that time been law for an hour and a half, and by which time Parliament had been on recess for a day!
This is all possible because of the Public Health (Control of Disease) Act 1984, as amended (“the 1984 Act”). George Orwell would be a rich man if he had made a bet at the bookies rather than written a book. It is of course an astonishing coincidence that the legislative root of the lockdown is the 1984 Act. This does not in truth tell the whole story because the 1984 Act was amended by the Health and Social Care Act 2008 which repealed many of the statutory provisions in the 1984 Act (which had been drafted with the proper parliamentary scrutiny) regarding public health emergencies, and inserted clauses into the 1984 Act making it possible to bring in vast measures by regulation instead.
The 1984 Act, as amended, enables the Government to make a wide range of regulations to manage and contain a public health emergency. It enables the creation by regulation of new criminal offences pursuant to Section 45F(2)(b). It requires any such regulations (not just those relating to criminal offences) to be approved by Parliament but there is an Emergency Procedure provision (contained in Section 45R) by which approval by the Houses of Parliament may be subsequent to the regulations being brought into force – such approval must nonetheless be forthcoming within 28 days under Section 45R(4)(a). Interestingly, no account is to be given when calculating the 28-day-limit of any time that Parliament is prorogued, dissolved, or adjourned for more than 4 days (cf. Section 45R(6)(a)). The nod of Parliament gets weaker still, and in a speech to the University of Cambridge (https://www.privatelaw.law.cam.ac.uk/events/CambridgeFreshfieldsLecture) Lord Sumption asks pertinently:
“Why did the government, once they had announced the lockdown on 23rd March wait for three days until 26th before making their regulations, and then resort to the Emergency Procedure on the ground that it was so urgent that Parliament could not be consulted in advance? The obvious answer, I am afraid, is that Parliament adjourned for the Easter recess on 25th. [The Government] deliberately delayed their urgent regulations so that there would be no opportunity to debate them before the recess. The period of 28 days before any kind of Parliamentary scrutiny was required was thus extended by the 21 days of the recess, i.e. to the middle of May”.
In using the 1984 Act, there has been suggestion – and applications for judicial review brought to court – that the Government may have committed a constitutional wrong-doing in the scope of the regulations they have passed. Big Brother Watch has argued that the lockdown measures should have been brought in under the Civil Contingencies Act 2004, which has the benefit of being “permanent legislation designed precisely for such purposes, containing the relevant safeguards, and creating a clear role for ongoing, meaningful parliamentary oversight”. Big Brother Watch, in their April 2020 Emergency Powers and Civil Liberties Report (file:///C:/Users/User/AppData/Local/Packages/microsoft.windowscommunicationsapps_8wekyb3d8bbwe/LocalState/Files/S0/36475/Attachments/Emergency-Powers-and-Civil-Liberties-Report-april-2020.pdf), argued that the choice of the 1984 Act may have meant that parts of the regulations were ultra vires – that is, the Government may have been acting beyond its authority, at least in its choice of legal basis. Francis Hoar, a barrister at Field Court Chambers, also argued early in the lockdown that the measures may be a disproportionate interference with European Convention rights, particularly the Article 8 rights to privacy and the Article 11 rights to freedom of assembly (https://fieldcourt.co.uk/wp-content/uploads/Francis-Hoar-Coronavirus-article-on-ECHR-compatibility-20.4.2020-2.pdf).
There have been a handful of applications to court so far for judicial review of the early coronavirus regulations. Raising the arguments of ultra vires action and disproportionate interference with Convention rights, barristers Philip Havers QC and Francis Hoar represented businessman Simon Dolan in a High Court application for permission to apply for judicial review – which was refused, but then the Court of Appeal agreed that an appeal of that decision should be heard. The High Court’s initial reasoned decision, dated 6th July 2020, may be accessed here: https://static.crowdjustice.com/group_claim_document/DOLAN_FINAL.pdf. The Court of Appeal’s reasoned decision, dated 4th August 2020, may be accessed here: https://static.crowdjustice.com/group_claim_document/Court_of_Appeals_Order_-_4_August_2020.pdf. The latest is that the Court of Appeal heard the submissions of Mr Dolan’s counsel just a few days ago, on 29th – 30th October. See here: “Coronavirus Regulations Case reaches the Court of Appeal – Hearing Dates 29-30 October 2020” (Robert Craig) (https://ukconstitutionallaw.org/2020/10/28/robert-craig-coronavirus-regulations-case-reaches-the-court-of-appeal-hearing-dates-29-30-october-2020/).
On top of the Dolan case is a further case brought by Dolan and the wedding venue operator Cripps Barn Group, again represented by Francis Hoar and this time Anna Dannreuther, both from Field Court Chambers, seeking an injunction in the High Court on 15th October (which was refused) against wedding venue restrictions. Dolan and Cripps now intend to bring a judicial review challenge against those restrictions.
There has further been an application by an unnamed solicitor and businessman for judicial review of quarantine restrictions on returning from holiday (again represented by Francis Hoar), as well as a short-lived suggestion of an application for judicial review on the same topic by British Airways and other major airlines and hospitality businesses. There have been suggestions of pre-action letters for judicial review by charities, and an unsuccessful application in the High Court relating to special educational needs rules under the coronavirus legislation (https://www.specialneedsjungle.com/explaining-the-inexplicable-why-the-government-won-the-send-coronavirus-judicial-review-round-one/).
Suffice to say, the Government’s policies and Statutory Instruments are being subjected to applications in the courts. Further reading on some of the substance of the Dolan applications may be found via the following links: “Can we be forced to stay at home?” (David Anderson QC) (https://www.daqc.co.uk/2020/03/26/can-we-be-forced-to-stay-at-home/); “Coronavirus and Civil Liberties in the UK” (Tom Hickman QC, Emma Dixon and Rachel Jones) (https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/#_edn4); “Lockdown: A Response to Professor King” (Robert Craig) (https://ukhumanrightsblog.com/2020/04/06/lockdown-a-response-to-professor-king-robert-craig/); “Ultra Virus – the constitutionality and legality of the Coronavirus Regulations” (David Allen Green) (https://davidallengreen.com/2020/04/ultra-virus-the-constitutionality-and-legality-of-the-coronavirus-regulations/).
I shall endeavour to write another article summarising some of the arguments being made for and against judicial review of the regulations. This present article has hopefully given an interesting overview of the legal and constitutional situation, and specifically an introduction to the 1984 Act.