Covid-19 Pressure Points: UK Coronavirus Bill – Constitutional law implications

The Covid-19 outbreak is causing substantial disruption to the daily lives of people around the world, and is putting considerable strain on the UK’s healthcare infrastructure. It also has the potential to be a shock to the UK’s economic system, and will impact business of all sizes and across sectors.

This is a fast-moving crisis, and this has meant that new measures and policies are being announced by the Government on a daily basis. Herbert Smith Freehills is continuing to monitor the situation, particularly on policy matters that affect our clients. This note provides a brief overview of the Coronavirus Bill 2020, a key piece of legislation which the Government is expected to pass as soon as it can this week.

Background

Following the outbreak of the virus, the UK government initially produced a Coronavirus action plan on 3 March 2020 (available here). The action plan noted that any response would be “tailored to the nature, scale and location of the threat in the UK, as our understanding of this develops”. Part of this response is to make the necessary changes to legislation in order to give public bodies across the UK the tools and powers they need to carry out an effective response to this emergency. The Coronavirus Bill 2020 is designed to fast-track these changes. A 329-page Bill was published on Thursday 19 March 2020, along with explanatory notes produced by the Department for Health and Social Care, and a detailed summary of the impacts of the Bill.

Key provisions

At the outset, it is worth noting that legislation of this nature is unprecedented. When passed, it will bring about wide-ranging changes to the law and give the Government sweeping powers with only limited controls in the unique circumstances.

According to the Government’s analysis, there are five key areas of change expected as a result of this Bill:

1. Increasing the available health and social care workforce – for example, by allowing for emergency registration of health professionals through new regulations, removing barriers to allow recently retired NHS staff and social workers to return to work (and in Scotland, in addition to retired people, allowing those who are on a career break or are social worker students to become temporary social workers).
2. Containing and slowing the virus – this includes the temporary closure of educational institutions and childcare premises and giving Ministers the power to control social gatherings and events where there is a serious and imminent threat (both of which have already been done through existing powers). Further, the Bill introduces certain provisions to expand the quarantine powers of police and immigration officers. For instance, the proposals will provide the police with the means to enforce sensible public health restrictions, and where necessary, the power to direct individuals to seek relevant treatment or attend suitable locations for further help.
3. Easing the burden on frontline staff – by reducing the number of administrative tasks they have to perform, enabling local authorities to prioritise care for people with the most pressing needs, allowing key workers to perform more tasks remotely and with less paperwork, and taking the power to suspend individual port operations.
4. Managing the deceased with respect and dignity – for example, by modifying current procedures in relation to death and still-birth registration and, in extreme situations, allowing local government to take control of a component or components of the death management process in their area.
5. Supporting people – by allowing them to claim Statutory Sick Pay with retrospective effect from 13 March 2020, and by supporting the food industry to maintain supplies.

While these are sweeping changes, the Bill on the face of it does include checks on the powers of public authorities:

• First, the powers are initially time-limited for a period of 2 years beginning with the day the Bill is passed (section 75). The lifetime of the Act (or indeed, any specific provisions in it) can be extended or shortened, but that would require further secondary legislation;
• Secondly, various safeguards have been built in to ensure that the powers under the Bill are only used as necessary and proportionate. The Government’s impact assessment also acknowledges the need to balance “speed, as appropriate to the risk posed by the virus, with safeguards to ensure proper oversight and accountability”.

Initial observations

There is cross-party consensus that the Covid-19 pandemic is a once-in-a-generation public health emergency, and that public authorities need extra support and powers to carry out their work efficiently. This, coupled with the Government’s comfortable Parliamentary majority, means that the Bill is likely to pass with few amendments.

From a human rights perspective, the primary duty for the Government is to protect life. While that is not in doubt, it is likely that there will be a degree of debate on whether the provisions are proportionate and necessary. Our initial analysis suggests that the following issues are among those that likely to cause concern:

1. There are concerns that rushing the passage of the Bill through Parliament will prevent any proper scrutiny by MPs. As we observe above, the Bill and its supporting documents are voluminous and set out wide-ranging powers for Ministers and local authorities. The current proposed timetable of 4 days between first debating the Bill and passing it means that it is unlikely to be closely debated. The Bill also grants Ministers (and where relevant, the Devolved Administrations) considerable powers to introduce secondary legislation and in certain cases, gives them “Henry VIII powers” to amend primary legislation. As we have noted in a previous briefing in the context of Brexit-related legislative processes (see here), secondary legislation and Henry VIII powers are unlikely to be properly scrutinised or debated, especially during a crisis.
2. A cross-party amendment to the Bill has been put forward suggesting that the initial period under the ‘sunset clause’ of the Act be reduced from two years to six months, after which Parliament could vote to renew it as necessary. In circumstances where the Government’s current expected timeline to control the pandemic in the UK is estimated at a few months or a year, the concern expressed by various members of Parliament is that two years is a disproportionate amount of time to grant the Government and public authorities wide-ranging emergency powers.
3. There are concerns over the Government potentially taking over private premises and property, for instance, private healthcare facilities. While such measures may be justifiable, Article 1 Protocol 1 of the European Convention on Human Rights (ECHR), which deals with the right to peaceful enjoyment of possessions, may be engaged.
4. The proposals to give police and immigration officers the power to detain people suspected of having Covid-19, to restrict travel and activities, and to require them to provide information to the authorities, are also likely to be closely scrutinised.
5. There are also a number of other human rights concerns including whether the powers in the Bill affect the right to liberty (Article 5, ECHR), right to family life (Article 8, ECHR), and the freedom of assembly and association (Article 11, ECHR). The scope and extent of these rights will undoubtedly be considered through the prism of the epidemic being a public emergency, but it is possible that this will throw up issues going forward.

Next steps

As we note above, the Bill is yet to be debated and it is possible that some of the concerns we flag above will be addressed through amendments to the Bill. Nonetheless, it is expected to go through all stages in the House of Commons on Tuesday 24 March, and through the stages in the House of Lords on Wednesday 25 March. The Bill is expected to be in the statute books by the end of the month, and will take effect immediately (with the exception of the provision on Statutory Sick Pay, which will have retrospective effect from 13 March 2020).

Conclusion

The Coronavirus Bill 2020 is an unprecedented piece of emergency legislation, and grants wide-ranging powers to public authorities to manage the outbreak. Beyond the Bill, the Government is expected to handle the governance of the crisis primarily through secondary legislation and policy statements. However, there are some questions around the scope of the Bill and the powers under it.

It is not unforeseeable that the exercise of these powers will form the basis of claims in the aftermath of this crisis, including by way of judicial review. For example, if a local authority takes actions that are seen as not necessary and proportionate to manage the crisis, it may be subject to a judicial review challenge. More generally, the Government and all local authorities will need to ensure that they exercise these emergency powers with the objectives of the Bill in mind, and not for any other purpose. If they go beyond the purpose of the Act, either through direct action or through the introduction of secondary legislation, it is likely that they will be susceptible to a challenge on the grounds of illegality.

If you have any questions on the Coronavirus Bill 2020 or any other concerns around the impact of Covid-19, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa or Sahil Kher. We will continue to keep a close watch on legislative developments, with a particular eye on issues that may impact our clients and their businesses.