Dr Rob Sutton is an incoming junior doctor in Wales and a former Parliamentary staffer.
Since the passage of the Coronavirus Act 2020, we have seen an unprecedented restriction of civil liberties in this country. The powers assumed by the government have allowed ministerial decree to circumvent parliamentary scrutiny and to regulate the minutiae of our everyday lives to a degree unimaginable just one year ago.
Yet the basis of these powers drawn from the Act is dubious. Notable legal scholars, particularly Jonathan Sumption, the former Supreme Court Justice, have argued that the legislation is unsuitable for the executive powers which have been carried out in its name. Parliamentarians are similarly frustrated by the way the Act has been used to evade parliamentary scrutiny while some of the most consequential restrictions are rolled out on ministerial whim. Steve Baker, in his duties as Deputy Chairman of the Covid Recovery Group, has repeatedly called for reform in this area.
Certainly, any legislation which is being used for such a constitutional distortion must be entirely unambiguous in its scope. The Act draws its authority in part from the Public Health Act 1984 (PHA). The PHA provides powers to restrict the movement of individuals known to have a communicable disease and to control spaces which are known to be contributing to contagion. Yet the current Covid-19 restrictions are far broader in their application that just to those individuals who are known to be infected, and this is where the Act treads into murky waters.
While the PHA is clear in putting forward what restrictions might be applied to individuals and premises known to be contagious (and these restrictions are entirely sensible), it is far less clear what the scope of its powers are with regards to individuals who are not infected with a communicable disease – the vast majority of citizens. The legal precedent on such issues is that, where there is ambiguous or general wording, such vagueness must not be used to curtail constitutional freedoms. Else, we would be able to take justify drastic actions using whatever legislation is unclear in its scope. But the Government seems uninterested in such precedent.
The primary piece of legislation which gives government powers to curtail civil liberties is the Civil Contingencies Act 2004 (CCA). The CCA is a remarkable piece of legislation which allows a government to wield extraordinary powers in an emergency. As such, its use is strictly bound by ongoing Parliamentary scrutiny of those powers. It is clear that these powers are lent to the government by Parliament, and for a limited period at a time. They can also be withdrawn by Parliament as it sees fit. The fear that an emergency might be exploited to evade the House of Commons by a power-hungry executive was precisely what the drafters had in mind when including such safeguards.
The necessity for Parliamentary scrutiny intrinsic to the CCA is why MPs have argued that the executive should be using it as the basis for coronavirus restrictions instead of the PHA, or that the PHA itself should be reformed to make clear the limits of its powers. Yet Boris Johnson has made clear that he has no intention of using the CCA as the legal basis of lockdown powers, so we return to the PHA to define that scope.
The current PHA certainly was not developed with the current situation in mind. So, as it stands, we find ourselves trapped in a middle ground, in which the legislation being used as the basis for lockdown is unsuitable for that purpose and incapable of giving such provisions as to ensure ongoing Parliamentary scrutiny. This gives the rather uncomfortable impression that the Government intentionally chose a legal basis which it could use knowing that it would be subject to a lower standard of Parliamentary scrutiny than that which would be required under the CCA.
Yet to try to circumvent Parliament in the exercise of executive power is extremely myopic. Whether the Government currently realises it or not, it is within their best interests to ensure that further restrictions are brought before Parliament. Parliament is not some constitutional inconvenience. It is the basis for our liberal democracy, the means by which legislation is given its moral authority and an exceptionally useful political tool to measure public perceptions of government plans.
By directly reforming the PHA to explicitly limit its scope, and to allow legislation carried in its name to face full scrutiny by Parliament, the Government would certainly face a short-term inconvenience of restricting the executive powers it has used lavishly thus far. But there would be an overwhelming long-term gain in ensuring that those measures passed have the direct consent of MPs and the indirect consent of their constituents. This would without doubt make for better and more resilient legislation and ensure that any further restrictions are more surely footed in both law and public opinion.