Portal de Periódicos da CAPES

Covid-19: Government by Decree

2020; Taylor & Francis; Volume: 31; Issue: 1 Linguagem: Inglês

10.1080/09615768.2020.1759398

1757-8442

Keith Ewing,

Legal Studies and Reforms

Click to increase image sizeClick to decrease image size DISCLOSURE STATEMENTNo potential conflict of interest was reported by the author(s).Notes1 R (Miller) v Prime Minister [2019] UKSC 41.2 See KD Ewing and Lord Hendy, ‘All in it Together? The Reality is Sadly Different’, Morning Star (11 April 2020). The point is made more vividly in Octavio Luiz Motta Ferraz, ‘Pandemic Inequality: The Two Worlds of Social Distancing’, The Yale Review (2020, available online).3 KD Ewing, ‘What Should We Make of the Government’s Coronavirus Job Retention Scheme?’, Campaign for Trade Union Freedom (26 March 2020) (available online).4 HC Debs, 11 September 1931, col 419.5 See now Terrorism Act 2000, as amended.6 Emergency Powers Act 1920, s 1(1).7 See the classic study by GS Morris, Strikes in Essential Services (Mansell 1986). Also, GS Morris, ‘The Emergency Powers Act 1920’ [1979] Public Law 317.8 Civil Contingencies Act 2004, s1(1).9 Ibid, s 19(2).10 Ibid.11 Emergency Powers Act 1920, s 1(1).12 Ibid, s 1(2).13 Ibid, s 2(1), as read with s 1(1).14 Civil Contingencies Act 2004, ss 20, 21.15 Ibid, s 22(3).16 Ibid.17 Ibid, s 23(3)(b).18 Ibid, s 23(4).19 Ibid, s 27(1)(a).20 Ibid, s 27(1)(b).21 Ibid, s 27(3).22 Ibid, s 26.23 Ibid, s 28.24 See Morris, ‘The Emergency Powers Act 1920’, above for the circumstances in which the 1920 Act was used.25 See Parts V–VI below.26 F White and K Hollingsworth, Audit, Accountability and Government (OUP 1999).27 House of Commons Library, Contingencies Fund Bill, 24 March 2020 (Briefing Paper, available online).28 Ibid.29 HC Debs, 24 March 2020, col 262 (Financial Secretary to the Treasury).30 House of Commons Library, Contingencies Fund Bill, above.31 Supply and Appropriation (Anticipation and Adjustments) Act 2020.32 See AW Bradley, KD Ewing, and CJS Knight, Constitutional and Administrative Law (17th edn 2018) ch 8.33 Supply and Appropriation (Anticipation and Adjustments) Act 2020.34 Bradley, Ewing, and Knight, above, p 191.35 House of Commons Library, Contingencies Fund Bill, above.36 Contingencies Fund Bill, Explanatory Notes, 23 March 2020 (available online).37 Ibid, para 7.38 Ibid, para 8.39 HC Debs, 23 March 2020, col 35 et seq.40 Coronavirus Bill, Explanatory Notes, 19 March 2020, para 1.41 Ibid.42 Ibid.43 These follow on from a scheme introduced in Denmark following a tripartite agreement between government, trade unions and employers: see Morning Star, 16 March 2020.44 GOV.UK, Claim for your Employees’ Wages through the Coronavirus Job Retention Scheme, 26 March 2020 (but regularly updated).45 Ibid.46 Ibid.47 BBC News, 8 April 2020.48 Coronavirus Act 2020, s 76.49 Ibid, s 86(1)(c).50 Although the published Guidance applies widely to zero hours and agency workers, there are overlapping complexities with tax law that appear to restrict eligibility.51 This was part of a wider examination of the economic impact of Covid-19. It was revealed that the TUC had advised the Treasury about the introduction of such a scheme but that they were not involved in negotiations about the scheme. The proceedings are available online at various locations, including Parliamentlive.tv, and BBC Parliament.52 For detailed consideration of the scheme, see the jointly written penetrating posts (23 March and 1 April 2020) by Alan Bogg and Michael Ford QC on the UK Labour Law Blog (online only), and by Lord Hendy QC on the Institute of Employment Rights website.53 Public Health (Control of Disease) Act 1984, s 45C(1), inserted by the Health and Social Care Act 2008. Similar measures were extended to the Scottish ministers by the Coronavirus Act 2020, Sch 19. See generally the very helpful account in Jeff King, ‘The Lockdown is Lawful’, UK Const L Blog (1 April 2020) (available only online).54 Ibid, s 45C(3)(c).55 Note however that the World Health Organisation declared the COVID-19 a Public Health Emergency of International Concern on 30 January 2020. See Explanatory Memorandum to the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, para 7.6.56 Coronavirus Act 2020, Sch 22, para 3(1)(b). However, there is no requirement the declaration should be communicated to Parliament.57 Public Health (Control of Disease) Act 1984, s 45D.58 Public Health (Control of Disease) Act 1984, s 45Q(4). This is specifically to safeguard personal rights: s 45Q(3)(b).59 Ibid, s 45Q(1).60 Civil Contingencies Act 2004, s 26.61 Ibid, s 29. On the application of the 1984 Act to Scotland, see below.62 Public Health (Control of Disease) Act 1984, s 45R(2).63 Ibid, s 45R(4). Compare the procedures in the Civil Contingencies Act 2004: regulations made for reasons of urgency lapse after 7 days unless approved by Parliament.64 Ibid, s 45R(6).65 SI 2020 No 350. The latter revoke regulations more limited in scope (dealing with business closures only) that had come into force on 21 March: SI 2020 No 327.66 SI 2020 No 350.67 See Morris, ‘The Emergency Powers Act 1920’, above. Also, KD Ewing and CA Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law, 1914–1945 (OUP 2000) ch 4.68 Coronavirus Act 2020, Sch 22, paras 5 and 6.69 Explanatory Memorandum to the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, para 6.6.70 SI 2020 No 350, reg 4.71 Ibid, reg 5(6).72 Ibid, reg 6(2).73 See also Chris Daw QC, ‘England’s Coronavirus Lockdown is Lawful. Heavy Handed Police Enforcement Isn’t’, The Guardian (7 April 2020).74 Cabinet Office Guidance, Coronavirus FAQs: What You Can and Can’t Do (29 March 2020). This advice was repeated on police websites, including the Metropolitan Police website.75 SI 2020 No 350, reg 6(2)(b).76 Ibid, reg 7.77 Ibid, reg 7(b) and (c).78 Public Health England, Guidance for Social Distancing for Everyone in the UK (30 March 2020) (available online).79 See the detailed guidance by the Department for Business, Energy and Industrial Strategy, Social Distancing in the Workplace During Coronavirus (COVID-19): Sector Guidance (7 April 2020) (available online). This has not been considered by Parliament.80 For a brief account of the employer’s duties, see Lord Hendy, ‘Note on Relevant H&S Laws for Workers Working During Coronavirus Crisis’, Campaign for Trade Union Freedom (27 March 2020) (available online).81 The Guardian, 6 April 2020.82 Civil Contingencies Act 2004, s 23(3)(b).83 SI 2020 No 350, reg 7.84 The Explanatory Memorandum accompanying the regulations contains a ministerial statement of compatibility with Convention rights (para 5.1), for all that is worth. On the human rights implications of the corresponding provisions in the Coronavirus Act 2020, Sch 22, see Department of Health and Social Care, Memorandum to the Joint Committee on Human Rights – The Coronavirus Bill 2020 (23 March 2020). Arts 10(2) and 11(2) are carrying a heavy burden.85 SI 2020 No 350, reg 8(3), (4).86 Ibid, reg 8(9).87 PACE 1984, s 74(1).88 Other circumstances relate to those about to commit an offence, and those reasonably suspected of being about to commit an offence.89 SI 2020 No 350, reg 9(7).90 Public Health (Control of Disease) Act 1984 s 45F. It is not clear what international agreement or arrangement the government is relying on, but perhaps the declaration of the World Health Organisation of a Public Health Emergency of International Concern, which is referred to in Explanatory Memorandum accompanying SI 2020 No 350. No other international agreement or arrangement is referred to. That said, although the Act expressly authorizes regulations to create offences and impose fixed penalty charges and so on, it does not expressly confer power to extend police powers of arrest. This matter is not addressed in the five page Explanatory Memorandum accompanying the regulations, This is a matter that may need more thorough examination.91 SI 2020 No 350, reg 10.92 The Guardian, 31 March 2020. A retired Supreme Court justice was among the critics of the Derbyshire police: The Guardian, 30 March 2020.93 Peterborough Telegraph, 28 March 2020.94 Nor do the regulations restrict shopping to ‘essential items’. Reasonable excuse is defined in the regulations to mean ‘basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household’ (reg 6(1)). Yet again there were press reports of police issuing summons to people for purchasing non-essential items (The Guardian, 30 March 2020). It was also reported that ‘Cambridge-shire police had to clarify that their force was ‘not monitoring what people are buying from supermarkets’ after an earlier now-deleted tweet attracted backlash for appearing to suggest officers had checked ‘non essential aisles’ in a local Tesco’ (The Guardian, 10 April 2020). Attempts to ensure a consistent police response were made in guidelines published by the National Police Chiefs and the College of Policing (The Guardian, 16 April 2020), though some of that remains contestable.95 PACE 1984, s 4 authorises road checks for indictable offences. Offences under the regulations are punishable on summary conviction (reg 9(4)).96 Peterborough Telegraph, 28 March 2020.97 Public Health England, Guidance for Social Distancing for Everyone in the UK, above. For the operation of this practice in different workplaces, see the detailed guidance by the Department for Business, Energy and Industrial Strategy, Social Distancing in the Workplace During Coronavirus (COVID-19): Sector Guidance, above.98 The Guardian, 10 April 2020. It was also reported that ‘South Yorkshire police apologized, claiming that the ‘encounter was well-intentioned but ill-informed and we'd like to apologise for the way it was handled. We've spoken to the officer concerned and made our approach absolutely clear. Again, we apologise for any inconvenience caused and will continue our work to support the NHS’.99 The Guardian, 8 April 2020. According to the same report, Patel ‘has been accused by an influential group of MPs of avoiding scrutiny at a time of national emergency, a tranche of correspondence has revealed’. The same article claimed that the Home Secretary had repeatedly ignored correspondence from the Chair of the Home Affairs Committee who was seeking to fix a date for Patel to give evidence in public to the committee.100 Yvette Cooper to Priti Patel, 8 April 2020, available on Home Affairs Committee website.101 See Public Health (Scotland) Act 1998. This, however, did not include all the amendments made to the Public Health (Control of Disease) Act 1984 made by the Health and Social Care Act 2008.102 SSI 2020 No 103.103 Exercising power expressly delegated by Coronavirus Act 2020, Sch 19, para 6.104 See, however, Department of Health and Social Care, Memorandum to the Joint Committee on Human Rights – The Coronavirus Bill 2020, above. The latter is an extensive document.105 See belated concerns in press reports of Opposition party concerns about the lack of accountability in the management of the crisis generally: The Observer, 12 April 2020. Also B Jenkin, ‘MPs Must be Able to Scrutinise the Handling of the Coronavirus Crisis’, The Guardian (13 April 2020); and A Rawnsley, ‘This crisis is stress testing the strengths and frailties of our national institutions’, The Observer (19 April 2020).