Ultra Virus – the constitutionality and legality of the Coronavirus Regulations

8th April 2020

The Coronavirus Regulations are the law of the land, and as they are the law of the land they must be obeyed, and the reason we have emergency laws is because of emergencies, and this is an emergency.

That sentence is there because there is a sense among some legal commentators that they cannot either comment critically on these regulations or even comment at all, lest some idiot takes the criticism to mean that the laws should not be obeyed.

In my view, however, such quietism and self-censorship may be more irresponsible than any constructive criticism.

At a time of emergency, the scrutiny of emergency laws is vital.

The law still needs to be obeyed when it is in force, even if there are processes for challenging it.

And so it is on this basis that this post sets out the constitutional and legal issues of the Regulations, further to previous posts on this blog (for example here and here).

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One way of critically approaching the Regulations is to look carefully at whether they accord with the parent legislation.

This is because the Regulations are secondary legislation – in this case, a statutory instrument – that only have legal effect (“vires”) to the extent that they are within the scope of the primary legislation, in this case, the Public Health Act 1984.

(Note that although the Act itself was passed in 1984, it has been heavily amended since, and so the relevant provisions for this discussion do not necessarily date back to 1984.)

At the august and influential UK Constitutional Law Blog, the outstanding legal scholar Jeff King has in two posts (here and here) setting out why he sees the Regulations as within the scope of the law.

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Others looking at the detail of the parent legislation take a different view, and they aver that the Regulations may be outside the scope of the parent Act (see here and here).

And Lord Anderson QC, the former independent reviewer of terrorism legislation and an authority on emergency legislation, has also set out his doubts, and concludes (with elegant and careful wording):

“In summary, the impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and arguably beyond. An ultra vires challenge would attract strong arguments in both directions. Ultimately, however, a court which is minded to uphold it as valid has, as it seems to me, a plausible legal argument for doing so.”

In other words: there are plausible grounds that a court may quash parts of the Regulations.

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As the head of this post sets out, the Regulations are the law of the land and must be obeyed.

The Regulations (or any part of them) would, however, cease to be the law of the land if a court of competent jurisdiction quashed the Regulations (or any part of them).

The possibility of this does not mean that, in the meantime, the laws cease to have effect – it means that there is a possibility that a court may one day take a different view.

And this is the case with any secondary legislation (and with any government action or inaction).

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So if there is scope for questioning the legality of the Regulations, what can be usefully said about the constitutionality of the Regulations?

In a sense this is a difficult area, as there is no codified constitution in the United Kingdom and to say something is “unconstitutional” is often not to say anything meaningful at all.

But there is a worrying constitutional feature about the Regulations which the approaches set out above, which focus on statutory construction and interpretation, to an extent overlook.

The Regulations have not had any parliamentary scrutiny or sanction.

They were given effect after Parliament was in recess.

The Regulations restrict or remove fundamental rights, including freedom of movement and freedom of association.

The Regulations create wide-ranging criminal offences.

In the two Miller cases, the Supreme Court ruled against two attempts by the United Kingdom government to do drastic things by ministerial fiat – to take the United Kingdom out of the European Union and to close down parliament for five weeks without any reasonable basis.

In both cases the Supreme Court, rightly, decided that something that fundamental should be decided and endorsed by parliament.

In the case of the Regulations, the government could have included the provisions in the Coronavirus Act, but chose not to do so.

And the government could (and, in my view, should) have used the Civil Contingencies Act, which has several built in safeguards and a supervision regime, but again chose not to do so.

Instead, the government chose to use the Public Health Act which even commentators who say that the Regulations are lawful accept is a bit of a shoehorn.

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My view is that they very decision to use the Public Health Act, rather than primary legislation (which parliament would vote on) or the Civil Contingencies Act (which gives parliament a defined supervisory role) is a decision which can be questioned both in terms of its constitutional propriety and indeed its accordance with public law principles.

The Regulations are to be reviewed shortly, and this blog yesterday put forward some modest proposals for taking the illiberal edge off from the provisions.

But there is a more fundamental question of ensuring that legislation that removes or restricts fundamental freedoms has parliamentary (and thereby democratic) approval.

Law not only should have authority – but ultimately also legitimacy.

The Regulations convert almost all normal social behaviour into anti-social behaviour, punishable as criminal offences.

Such upheavals should have democratic sanction, just as any other upheaval like leaving the European Union or closing down parliament.

And it is not “irresponsible” to point this out – indeed, it seems to me irresponsible to pretend this is not of any urgent concern.

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11 thoughts on “Ultra Virus – the constitutionality and legality of the Coronavirus Regulations”

  1. Thank you for this and I enjoyed your discussion with Adam Wager on his podcast.

    One thing I noticed was your discussion about “gatherings”. One type of gathering which occurs every day is the supermarket queue! I think it meets all the requirements you discussed.

  2. I think it is (almost!) universally acknowledged that we are faced with a (global) public health crisis and that behaviours must be altered to minimise its consequences. I would hope that such an alteration would be attained voluntarily via proper communication (open and honest communication which, alas, is not a strong suit of HMG at the moment) with an informed and compliant public. Life experience tells us that without coersion of the law and police, this will be ineffective for large segments of the community. Therefore, law and curtailment of rights is a necessary evil. However, the scope of the laws and the actions of segments of the police are akin to a surgeon conducting a life-saving operation using a battle-axe rather than a scalpel. In short, there were probably better ways to achieve the desired end point.

  3. You went with the pun.
    Yay.
    Good point about the dubiety of using the Public Health Act.
    Our rulers certainly have form in seeking to evade Parliamentary scrutiny.

  4. It is ‘irrespsonsible’ not to scrutinise laws, acts or actions that curtail/clip our every day freedoms. Simple acceptance can lead to dark times but analysis does not equate to non compliance or advocate law breaking. You/People should not be vilified for merely questioning, otherwise what are we becoming! Getting it right would surely serve the police better in their unenviable role in interpreting such legislation and make the policing of it more effective.

  5. Not a member of the Legal community so forgive the inadequacies of how I ask this question. How would one go about raising a challenge on the qualities of this regulation that are less than necessary to carry out the regulatory intent of improved health and safety? In the U.S. we have to show how the regulations or even an Act is flawed by how it was applied in one or more cases when considered against another standard of care (e.g. U.S. Constitution). Is that how it would also work in the U.K.?

  6. There is a repeat of a 2006 documentary about the government’s contingency plan for a flu pandemic on BBC4 tonight, 8 April.

    So, why isn’t there a ‘Pandemic Act’ ready and waiting? It would be far better to pass such an Act beforehand when it’s possible to scrutinise it properly.

    And similarly, why isn’t there a clear plan for when the Prime Minister is incapacitated?

  7. May I offer a short reading list for those who wish to explore further the very serious issues raised by David Allen Green in his comments on constitutionality?

    The starting point must be St Thomas Aquinas, Summa Theologiae, First Part of the Second Part (Prima Secundae) QQ 90 -108 (often called the Treatise on Law), and especially the discussion of whether human laws are binding in conscience in Q9 Art 4:

    Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived, according to Prov. 8:15: “By Me kings reign, and lawgivers decree just things.” Now laws are said to be just, both from the end, when they are ordained to the common good, and from their author, that is to say, when the law that is made does not exceed the power of the lawgiver, and from their form, when burdens are laid on the subject, according to an equality of proportion and with a view to the common good. For, since one man is a part of the community, each man in all that he is and has, belongs to the community; just as a part, in all that it is, belongs to the whole; wherefore nature inflicts a loss on the part, in order to save the whole: so that on this account, such laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal laws.

    On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above, either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory, or in respect of the author, as when a man makes a law that goes beyond the power committed to him or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Lib. Arb. i, 5), “a law that is not just, seems to be no law at all.” Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right, according to Mat. 5:40,41: “If a man . . . take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two.”

    The second book that deserves a read was written by John Lucas, sometime tutor in philosophy at Merton College, Oxford and published in 1966, “Principles of Politics”. This contains a discussion of why we should obey the law and an equally useful discussion of the difference between the American principle of constitutional limitation and the British tradition of constitutional criticism. Although John Lucas’s book may be irritating to many readers of this blog – it would certainly have met the approval of the Third Marquis of Salisbury (“what it is not necessary to change it is necessary not to change”) and now appears dated in many respects – it sets out what a powerful mind made of the issues raised by David Allen Green. (John Lucas died on 5th April – he is the father of the journalist Edward Lucas. May he rest in peace and rise in glory.)

    A third – and very difficult book – that illuminates these issues is Edith Stein’s “An Investigation into the State.” Published in 1925 (the same year as Mein Kampf) one of its central points is that a state ceases to be a state when its members cease to obey the laws of the state. Edith Stein offers a very different account of the state from that offered by Boris Johnson in his justification of Brexit. These are arguments in which we should engage.

    I offer these suggestions because I agree passionately with David Allen Green that we do need to discuss these issues, not just because as Aquinas believed, engaging in honest intellectual debate is part of our way to eternal salvation, but because of the disastrous experiences of suppressing debate as happened in England in the sixteenth century.

    Comparing Elizabeth I with Victoria, the historian John Lingard (“Lingard never gets anything wrong” – Acton) observed that Victoria was more secure on her throne than Elizabeth because she relied not on a bloodstained penal code but on the loyalty that flowed from civil liberties enjoyed by her subjects. We know from the trial of the Earl of Essex that under Elizabeth admitting reading a book entitled “A Conference on the Next Succession” written by the Jesuit Robert Parsons was enough to convict the reader of high treason.

    Those who condemn constructive debate over whether particular aspects of the regulations to suppress Covid 19 are conducive to the common good are taking us on a very dangerous road.

  8. What is the actual law that people are breaking when they (1) go to the park to sunbathe or (2) drive somewhere to take exercise?

    The only relevant prohibition I can see is against leaving the home without reasonable excuse. So is sunbathing a reasonable excuse? We all need Vitamin D and the normal way to obtain it is to be out in the sun. Another way to look at the reasonableness of an excuse is to think of the harm that is being done by the action that would be prohibited. If I walk to the park and sit on the grass away from other people it is hard to see that any harm is being done – especially if walking to the park and walking on the paths there is acceptable “exercise” and I have certainly seen the police tell sunbathers that they must get up and move around the park (or go home). Finally, is walking to the park “exercise”? if my intention is to take exercise and then sunbathe then as I see it I have met the “reasonable excuse” requirement and there is no requirement to go straight home after taking exercise.

    Similarly, if “taking exercise” is a reasonable excuse for leaving the home, why would getting into my car and driving somewhere – even an empty Brighton Beach – render it unreasonable (going to a crowded place could lead to a breach of the anti-gathering regulation). These are public health regulations and the only harm to public health from my drive is exhaust emissions.

    So I struggle to see from where the police get some of the powers they claim to be enforcing. That they then sometimes say that they are enforcing “government guidelines” only makes it worse.

  9. The police have now published their guidance on how to enforce the Coronavirus regulations, drawing on some CPS guidance. The guidance seems to me to be a bit dubious in places – I would be interested to see the views of the lawyers who follow this valuable blog.

    https://www.college.police.uk/What-we-do/COVID-19/Documents/What-constitutes-a-reasonable-excuse.pdf

    The guidance should certainly cut down on some of the over-zealous policing: the Chief Constable of Northamptonshire will no longer rifle through your shopping searching for inessential items; and Derbyshire Police will no longer send drones to hunt down people who have driven for a lonely walk on the moors. The guidance also tells officers to ignore statements about only exercising once a day or only leaving the house when it is “essential” to do so; officers should follow the law. Good.

    But the guidance seems to me to read into the regulations a requirement that the reasonable excuse for leaving the house needs to subsist at all times or at any rate be the main purpose. When I was a civil servant working on regulations I was told that if you wanted a condition to apply at all times then the law had to say so.

    So the guidance says that if you are shopping for necessities you may also shop for luxuries; good.

    But the guidance says that you may not buy equipment to repaint your kitchen since the regulation only talks about necessary maintenance of property, which suggests to me that the authors of the guidance have forgotten the point they made about shopping not having to be only for necessities.

    Further, on exercise, it says that sitting on a park bench for a short time when taking long walk is alright; but going for a short walk to the park and then sitting on a bench for a long time is not alright. That does not seem to me to be what the regulation says. I suggest that exercise is exercise; a short walk to the park is exercise; that exercise is not invalidated by sitting for a long time on a park bench.

    In my view, what the regulations say is that once you have left the home with a reasonable excuse you are free to stay out and do whatever you like, even going to a party in a private home. That may not be what Ministers want the regulation to say. But I do not see where the regulation says that activities that do not provide a reasonable excuse for leaving the home are not allowed or that you must return home when the reasonable excuse no longer applies.

    The guidance does say that the regulation lists examples and does not set out a definitive list. But the guidance only discusses those examples and does not provide help for officers to use their judgement on other cases. So the presentation does encourage officers to treat the list as definitive.

    The big gap seems to me to be that the guidance does not emphasise that these are public health regulations, not public order regulations. The natural tendency of the police is to treat them as public order regulations. Hence people sunbathing are told to get moving or go home. If the police applied a public health judgement I suggest they would reach a different decision, since the virus risk from someone sunbathing on their own is no greater than from someone exercising, and there are equivalent well-being benefits to mental health and Vitamin D production.

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