To safeguard liberty, all emergency powers should meet these four testsby Adam Wagner / April 16, 2020 / Leave a comment
I feel for government lawyers at the moment. I really do. With little warning, they have been required to draft hundreds of pages of new laws to deal with the coronavirus outbreak. These have had to legislate for the “lockdown”—the rules which prevent everyone in the UK leaving their house except in limited circumstances—and a range of other measures which allow for the quarantining of the infected and the disposal of bodies, among other things.
Today, 16th April, is the date by which the health secretary must review the lockdown laws to ensure that they remain necessary to prevent the spread of Covid-19—a good day to take stock.
It is less than a month since the major pieces of emergency legislation were introduced to parliament. For context, a whale of a bill such as that which became the Coronavirus Act, with its huge impact on personal freedoms, would ordinarily start as a white paper and a consultation lasting months, followed by months more of debate, amendments and committee stages. Ordinarily, there are days, perhaps weeks, of debates in the Commons and the Lords.
The Coronavirus Act received royal assent just six days after it was introduced. It was debated for less than three days. Extraordinarily, the lockdown regulations, which imposed the most draconian restrictions on civil liberties since the Second World War, were the subject of no debate at all. Because they are emergency regulations under public health powers, they can be introduced by executive fiat with no need for approval by parliament.
This scrutiny vacuum will continue as long as the regulations stay in force. That is a huge amount of power for the executive which, as the emergency goes on for weeks, months, perhaps even years, becomes ever-less defensible.
Nobody can dispute that the pandemic is a genuine emergency and it is necessary to give the police powers of enforcement to respond to it. But it is reasonable to question whether laws have to happen this way. The lockdown regulations have come under criticism for being unclear. This has not assisted police in enforcing them consistently and miscarriages of justice have already occurred. It is still not entirely apparent why the lockdown enforcement powers were not brought in as a part of the Coronavirus Act, which was passed in the same week and required a…