This article belongs to the debate » Power and the COVID-19 Pandemic
07 Mai 2021

A Government (Un)Governed?

Examining the UK’s Legal Responses to the COVID-19 Pandemic

Introduction

On 16 December 2020, despite rising rates of infection and the widely predicted ‘second wave’ already impacting neighbouring European countries, Prime Minister Boris Johnson mocked the opposition for wanting to ‘cancel Christmas’ by reintroducing nationwide lockdown restrictions. Three days later, a nationwide lockdown in England was introduced (inadvertently mimicking the March 2020 commitment that London had ‘zero prospect’ of lockdown, four days before it was enforced). The lockdown – closing schools, universities and a majority of businesses which were deemed non-essential and prohibiting gatherings of more than two people outdoors from separate households – continued until 12 April 2021 when restrictions began to be lessened through a phased ‘roadmap out of lockdown’. Such political hyperbole by the executive and lax response, followed by sudden U-turn policy making (‘essay crisis’ governance) and severely restrictive measures, have characterised much of the response to the pandemic in the UK. The hypertrophied executive dominance of action coupled with the lack of parliamentary oversight, as well as the uncertainty as to the distinctions between law, guidance, and advice, have plagued the coronavirus response in the UK.

Westminster Decision-Making and the Underlying Legal Framework

As analysed in the 2020 Report, the legal framework which underpins the executive responses across the UK has been the Public Health (Control of Disease) Act 1984. The hastily adopted Coronavirus Act 2020 has not been the primary basis for the most significant restrictive powers of lockdown exercised by government. The Coronavirus Act, however, did extend certain powers to close premises or restrict gatherings to all governments in the UK, as well as introduce a number of new offences. Described as a ‘manifestation of excessive executive dominance’ for its trifecta of wide delegated powers, Henry VIII powers (where ministers can repeal or amend statutory law) and lack of parliamentary scrutiny, the Act was passed within four days, only one of which included parliamentary debate. Promised regular reporting and debated six-month renewals to ameliorate the deficiency in parliamentary scrutiny which oversaw its arrival has been disappointing at best: the mandated bimonthly reports have ‘primarily been descriptive, with either no or only a short and fairly cosmetic discussion of rights and equality impacts’; and, in the last year, the Act and measures taken under it have been subject to only five hours of parliamentary debate, including the time taken to debate its renewal. Even where such debate exists, it does not extend to the 1984 Act upon which much of pandemic response has been based.

The primary mechanism of action has been in the form of statutory instruments, or regulations promulgated by government ministers. Since March 2020, over 400 of these instruments have been adopted with little or no parliamentary scrutiny. Such regulations have included powers delegated to police forces to enter private premises day or night, and to issue fines of up to £10,000 for breach of self-isolation rules – the latter rule coming into force within hours of being introduced. Nearly a quarter of the instruments have also been subject to the ‘urgent procedure’ under the Public Health (Control of Disease) Act 1984, further diminishing the capacity for meaningful oversight, and have often not been justified by reason of ‘lack of time’. As pointed out by the Hansard Society, in one such instance, mandatory face coverings had been policy-trialled for weeks, before being introduced under the urgent procedure ostensibly due to the ‘lack of time’ to properly consider such a measure.

Since March 2020, COVID-19 regulations have been changed by government over 65 times – prompting concerns not only for the legal certainty of measures, but also the capacity for public authorities, including those charged with enforcement, and the public to follow and to adapt to these changes. The lack of oversight, and speed of introduction, has also correlated with frequent errors in the regulations, leading to further legal uncertainty and potentially unlawful exercises of power. A connected and long-standing criticism has been the difficulty of distinguishing government advice, guidance, and the law. Such uncertainty creates a problematic issue for the rule of law, where police forces may interpret and enforce ‘guidance-as-law’, and in doing so unlawfully act beyond their powers. This is all the more heightened where the government has announced measures in press conferences rather than in Parliament, and has justified action behind newspaper paywalls, or adopted hyperbolic penalties for breach of COVID-19 measures which may not have a sound legal basis. For example, the Westminster government defended plans to jail any person found to have lied about their recent travel history for up to 10 years (by scale comparison, causing death by dangerous driving holds a maximum sentence of five years), and stated that Parliament would not be given a vote on such a new regime as the offence could be brought under the Forgery and Counterfeiting Act 1981. Beyond the fact that this would be a grossly disproportionate sentence, one interpretation is that it could not be lawful to announce such an offence and so has the effect of misleading the public on the law in order to act as a deterrent. It should be underlined on this point that consent is more effective than coercion, just as public trust is foundational to the most effective responses to pandemic management. 

Devolution and the COVID-19 Response

Health policy, as a devolved competence to be determined by each of the constituent legislatures of the UK, has meant some division between the policies adopted in England, Northern Ireland, Scotland, and Wales. While there was initial indication that the Westminster and devolved governments would aim to coordinate during the pandemic – for example, in the publication of the joint Coronavirus Action Plan in March 2020 – policies have crucially diverged. The decision by Prime Minister Boris Johnson to ease the first lockdown in May 2020 was disowned by th