Chapter 11 Additional Material: Coronavirus law

Coronavirus law

Since 2020, the UK government and the devolved governments have needed to move at speed to contain the spread of coronavirus and protect public health, and they have created temporary laws to achieve this as circumstances change. As health is a devolved matter, the legislation imposing and easing lockdown restrictions has varied across the four nations of the UK and the process of lifting restrictions has shown a UK-wide divergence.

Coronavirus law in the UK consists of both primary law (statutes) and secondary legislation (statutory instruments). The Coronavirus Act 2020 was fast-tracked through Parliament in four days and received royal assent on 25 March 2020. It introduced a range of extraordinary measures to enable the UK government and public services to respond to the COVID-19 pandemic while at the same time balancing protection of public health with safeguarding individual rights. Due to its exceptional nature, the Act is time-limited to two years. Lockdown regulations in secondary legislation have restricted gatherings and movement of people, and the operation or opening of some businesses. Even when lockdown restrictions have eased, there have still been requirements to wear face coverings (e.g. the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020) and to self-isolate if suffering from, or having been in close contact with, coronavirus. There have also been restrictions on international travel to designated countries and a requirement to quarantine after international travel.

On 23 March 2020, the Prime Minister announced the first lockdown in a televised address, which required the public to stay at home. In England and Wales, the lockdown was enforced by secondary legislation passed under the Public Health (Control of Diseases) Act 1984 (not the Coronavirus Act 2020). Section 45R of the 1984 Act allows secondary legislation to be introduced using the emergency procedure if it is necessary to make the order as a matter of urgency; this means that it can be made without advance parliamentary scrutiny, although regulations must be approved by Parliament within 28 sitting days or they will no longer have effect. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) required non-essential shops and hospitality and entertainment businesses to close, and restricted movement and gatherings of more than two people from different households, making it an offence to leave home without reasonable excuse. The regulations came into force as a matter of urgency on 26 March though by the time they were approved by Parliament on 4 May, they had been amended by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 to clarify that no one could leave or be outside the place where they lived without a reasonable excuse. The lockdown regulations were repealed on 4 July 2020 by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) which eased lockdown measures in most of England, with local regulations coming into force for Leicester. More localised measures were introduced on 18 July with the Health Protection (Coronavirus, Restrictions) (No. 3) (England) Regulations 2020 (SI 2020/750) which gave local authorities powers to respond to coronavirus transmission in their area.

In autumn 2020, the tier system was introduced, followed by the second lockdown in England which was effected by the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (SI 2020/1200). Those Regulations were revoked by the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374) which were subsequently amended to take England into a third lockdown in early January 2021. In its spring 2021 COVID-19 Response, the government set out a roadmap out of lockdown for England with a phased lifting of restrictions from 8 March 2021, and the aim of removing all legal limits on social contact no earlier than 21 June. The roadmap measures are given effect by the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (SI 2021/364).

Although a number of statutory instruments have not received Parliamentary approval before coming into force, regulations have been subject to regular review by the government. During a debate in the House of Lords on the Health Protection (Coronavirus Restrictions) (England) (Amendment) (No2) Regulations 2020, Lord Bethell was of the view that ‘the situation has demonstrated that our flexible unwritten constitution is a strength in extraordinary times such as these and that our parliamentary democracy can retain its oversight while bringing about measures necessary to meet these unprecedented circumstances’ (HL Hansard 15 June 2020, Vol 803 col 2006).

The lockdowns in 2020 and 2021 have imposed the most stringent restrictions on personal freedom seen in peacetime in the UK which has prompted judicial review challenges to the government’s response to the crisis. The chief one to date is the Dolan case. In Dolan v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin), the claimant argued that the lockdown regulations were unlawful because they were ultra vires and irrational, and the restrictions on movement breached various Convention rights, particularly Articles 5, 8, 9 and 11. The High Court refused permission for judicial review, holding that the Secretary of State had the legal power to make the regulations and the government had lawfully and rationally assessed the risks posed by coronavirus. The Secretary of State had not fettered his discretion and had had regard to relevant considerations, and the restrictions were not a disproportionate interference with Convention rights. By the time of the hearing, a number of restrictions in the regulations had in any event been replaced. On appeal, the Court of Appeal held that the claim was academic as the regulations had been repealed (R v Secretary of State for Health and Social Care and Secretary of State for Education ex parte Dolan [2020] EWCA Civ 1605). The court agreed with the decision of Lewis J in the High Court. In relation to the irrationality claim, the court gave great weight to the decision of the government as the regulations were approved by Parliament, the government had to make difficult judgments, weighing a number of competing interests, and it was impossible for a court to intervene in this matter of political judgment ([86-90]). See also R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin), where an application for an interim order to enable a mosque to hold Friday prayers during lockdown was unsuccessful because the infringement of the claimant’s rights under Article 9 ECHR was not disproportionate.

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