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.
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.
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.
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).
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.
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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