We are all under attack from the Severe Acute Respiratory Syndrome Coronavirus 2 (“the Coronavirus”). This time, our foe is not a country, a terrorist group or a person. Nor is it a predator. Chillingly, it is not even alive. The Government has exceptionally wide powers under the Civil Contingencies Act 2004 in this present emergency which could include forcible quarantine and assessment, the confiscation or requisition of property and compelling citizens to assist in policing.
On its own, it cannot move, respond to stimuli or reproduce and will disintegrate in a short time. It is about a tenth of the size of a bacterium, essentially a packet containing a tiny amount of genetic information (RNA – the instruction manual for the making of proteins), and it must be absorbed into a human cell by latching onto specific receptors on the cell (which is why (1) it can only harm humans and (2) it can harm all humans). Once it does so, its RNA gets into the factory within the human cell (its various ‘organelles’) instructing the production of multiple copies of the virus which are then released, along with other harmful proteins which cause a damaging immunological reaction by interfering with, and redirecting, the body’s own self-defence system (neutrophils and killer T-cells).
Most viruses have no cure. While antibiotics destroy bacteria (cellular life forms), by destroying their cell walls, they have no effect on viruses, which have no cell wall – just a protein envelope. There are very few antiviral drugs because they must interfere with our cells’ internal processes in order to prevent production of virus particles and so risk damaging our own cells.
In practice, we can, at best, slow viruses down while our immune system develops sufficient antibodies to the virus etc. that we recover and become immune. Where a sufficient proportion of us become immune – through infection and recovery or vaccination, effective person to person transmission ceases because of ‘herd’ immunity. Some coronaviruses (e.g. the many hundreds that cause the common cold) mutate so rapidly and into so many different forms that the creation of any effective vaccine is impossible. The Coronavirus has already been shown to have mutated and it may come back, year after year.
Particles one ten thousandth of a millimetre across that are not even alive will make humans potentially deadly to one another for at least the next year during which life itself must be conducted entirely differently as we distance ourselves from each other.
This is an emergency.
The concept of a ‘state of emergency’
On the evening of 21 February 1933, a fire broke out in the Reichstag building in Berlin. The recently sworn in Chancellor, Adolf Hitler, leading a fragile coalition government toward a high-stakes election, persuaded President Paul von Hindenburg to issue the ‘Reichstag Fire Decree’ pursuant to the emergency provisions contained in Article 48 of the Weimar Constitution. This decree suspended habeas corpus, freedom of expression, freedom of the press, the right of free association and public assembly and the secrecy of the post and telephone. The legislation was revocable by the Reichstag under Art 48, but the ‘election’ delivered Hitler an effective majority. The rest is well-known.
Emergency powers are entirely rightly viewed with great suspicion for they mark a move away from the norms of a democratic society.
In the UK, until the beginning of this century, the Emergency Powers Act 1920 enabled the Sovereign to declare a state of emergency by proclamation. Proclamations of emergency were issued on 12 occasions – the last being in 1974 – not in reaction to war, terrorism, flood, famine or disease but, in each case, in order to deal with strike action. In times of genuine emergency, the United Kingdom has Kept Calm and Carried On.
The modern emergency powers legislation: the wide concept of ‘emergency’
The Civil Contingencies Act 2004 (CCA) was enacted in the years following the terrorist attacks in the United States on 11 September 2001 (prompted by fuel protests, severe flooding and foot and mouth disease). It removed the concept of a ”state of emergency” from the laws of the United Kingdom. Instead, it defined ‘emergency’ very widely indeed (ss.1 and 19). That definition plainly included the Coronavirus pandemic, being a:
situation [inside or outside the UK] which threatens serious damage to human welfare in the United Kingdom or in a Part or region” (see s.19(1)(a)). [emphasis added]
Power to make emergency regulations
At the heart of the CCA is a draconian power (under s.20) on the part of the Privy Council (technically, by the Queen – by making Orders in Council) to make emergency regulations in the event of an emergency – actual or imminent – where they are necessary to control or mitigate the effects of the emergency.
If the emergency leaves no time to assemble the Privy Council, then the regulations (by way of statutory instrument) may be made by the Prime Minister, a Cabinet Minister or by one of the Lords Commissioners of HM Treasury.
On Thursday 19 March, when announcing the forthcoming business of the House, the Leader of the House of Commons, Mr Jacob Rees-Mogg gave this explanation for why HM Government did not make emergency regulations under the 2004 Act:
“Unfortunately, the Civil Contingencies Act would not have worked in these circumstances, because the problem was known about early enough for it not to qualify as an emergency under the terms of that Act. The legal experts say that if we can introduce emergency legislation, we should do so rather than using the Civil Contingencies Act, because if we have time to introduce emergency legislation, we obviously knew about it long enough in advance for the Act not to apply. That is why that Act could not be used.” [emphasis added]
With great respect to the Minister, the Coronavirus pandemic most certainly does “qualify as an emergency under the Act” and it may be that his real point is that the Government should introduce emergency legislation through Parliament rather than under s.20, where it can reasonably do so.
An example of the use of s.20 to make emergency regulations – no matter how long the Government have known about the Coronavirus – would be to avoid the situation that occurred in Lombardy on 6 and 7 March. There, when plans to quarantine that entire region of Italy leaked out before the decree was issued, many people rushed to leave the region in the hours before the decree came into effect, partly defeating its purpose. If the Government were to seek to severe restrict internal movement in a part of the UK without prompting a counterproductive exodus, it would have to do so by immediately – and without notice – issuing emergency regulations (see below) and requiring main media outlets to publish the restrictions simultaneously with an announcement in the House of Commons. Conventional legislation could then replace them in due course.
Potential breadth of emergency regulations
Emergency regulations can make as far-reaching provision as could be made by an Act of Parliament, except that they cannot amend the Human Rights Act 1998 or (unsurprisingly) their own enabling provisions in the CCA – which would be a recipe for dictatorship – and they cannot introduce military conscription, ban industrial action or create criminal offences other than for disobedience connected with the regulations themselves. Subject to these limitations, they can amend or disapply any almost any other primary legislation.
Such regulations may be draconian in effect: they can provide for the confiscation or destruction of any property without any compensation, force people to relocate and prohibit their assembly. The regulations may criminalise disobedience to their effect with up to 3 months’ imprisonment available on conviction in a magistrates’ court. Nothing prevents such regulations from requiring media outlets to broadcast/publish information concerning restrictions to the public.
When making emergency regulations, the Privy Council or Minister must provide a declaration that they are compatible with the ECHR. So far as it is possible to do so, they will be read and given effect to by the Court in a way which is compliant with the ECHR (pursuant to s.3(1) Human Rights Act 1998).
Emergency regulations may last up to 30 days but may be renewed, repeatedly, if necessary (s.26).
A senior Minister of the Crown must, as soon as is reasonably practicable, lay the regulations before Parliament for scrutiny and, if each House so resolves, a given set of regulations may be annulled or amended. If each House does not approve the regulations within 7 days of being put before them, they automatically lapse. But they can be renewed by the Privy Council or Ministers (see s.27(4)(a)).
What if draconian regulations are made and ministers drag their feet in laying them before Parliament? In that case, the High Court and Court of Session will have power to strike them down, for example, if the threshold conditions are not made out or to the extent that they are incompatible with an ECHR right. This may leave those who have exercised powers and duties under them highly vulnerable to challenge.
Assembling Parliament may well now be very difficult – the average age of the members of the House of Lords is 70 years and this presents obvious risks.
Mandatory isolation of those who it is suspected may be infected by coronavirus
The Health Protection (Coronavirus) Regulations 2020 is aimed at those who are suspected of being infected or who at risk of spreading infection. They do not confer a right to impose, for example, mandatory vaccinations of healthy populations in order to create ‘herd immunity’ (see s.45E of the Public Health (Control of Disease) Act 1984).
Paragraph 24 of Schedule 20 of the Coronavirus Bill 2020 will revoke these regulations and replace them with the provisions in Schedule 20. Unsurprisingly, they also do not contain any provision for compulsory vaccination. Emergency regulations made under the CCA potentially could impose a compulsory vaccination programme if this was “necessary… for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency” (s.21(3)). The requirements would have to be “in due proportion to that aspect or effect of the emergency” (s.23(1)(b)). It is doubtful that mass compulsory vaccinations could be mandated in this way without there being an alternative provided – e.g. being subject to travel, assembly or contact restrictions.
The police will find themselves on the front line in the enforcement of emergency regulations, particularly in relation to curfews and the prevention of looting should there be a breakdown of civil society. Emergency regulations may (purport to) create additional police powers to give directions or orders – e.g. to enforce a curfew or a relocation order. Indeed, it is very likely that the burden of enforcement (including requisitioning property) will fall very heavily on the police (potentially assisted by the armed forces).
It is possible that any emergency regulations will create a special scheme for review of (the exercise of) emergency powers to be swiftly conducted by a specially established emergency tribunal which might mitigate the more draconian effects on citizens and limit the scope for later claims (see s.22(3)(n)). It may be that such a tribunal would be the body which decided on whether property was to be appropriated or whether individuals or classes of individuals were to be relocated.
The police will need to ensure that they understand the precise scope of any temporary criminal offences of non-compliance when considering powers of arrest. They will not be indictable offences – so that powers of search or of entry available following arrest for indictable offences will not arise unless specially created in those regulations.
In normal times, the police cannot usually compel citizens to cooperate positively with them – save to assist in quelling a breach of the peace. In a sufficiently grave emergency, Ministers might consider it necessary to place a duty on citizens to provide certain positive cooperation, on pain of prosecution. Although ministers will not be able to use emergency regulations in order to require citizens to provide military service, the CCA does not prevent them from requiring them to assist in civil defence endeavours, such as food and welfare provision, firefighting and the maintenance of law and order. In relation to the latter, it is conceivable that regulations would enable senior police officers to press responsible citizens into temporary quasi-police service. Members of HM Forces may temporarily be clothed with police powers and duties during an emergency.
There is a high likelihood of error in the use of any temporary powers and in the discharge of temporary duties, given that there will be little or no time for training and briefing in relation to them.
Civil liberties and the Rule of Law
States of emergency have been the much-favoured means by which (ostensibly) elected leaders have strengthened their grip on power, usually with the assistance of the police and/or the military, using a serious incident (e.g. the Reichstag Fire in 1933) as a pretext. Power tends to corrupt and absolute power corrupts absolutely. Those who dissent or protest become ‘enemies of the people’ and emergency powers are renewed again and again. The Courts of the United Kingdom and the free press will stand vigilant in the face of any hint of this. And when emergency powers expire, any reliance on them to the significant detriment of citizens will have to be justified.
It will be vital for police carefully (so far as is possible) to document the use of any emergency powers accorded to them, and their rationale, and the discharge of any emergency functions.
It is perhaps only a matter of time this emergency gives rise to a state of affairs sufficiently serious to require the making of emergency regulations under the CCA. When this is all over, among the first signs of normality seen will be the launching of (perhaps numerous) legal challenges. They will inevitably include the police among their targets. When responding to an emergency, the police will, of course, not think first about potential legal problems – they will deal with the emergency. But where they have been given significant additional powers, resources and duties, they will wish to use them as sparingly and as cautiously as the emergency permits. Act in haste, repent at leisure.