Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The constitution of the United Kingdom is not comprised of a single codified document but is rather to be found in a multitude of ordinary statutes, rules of the common law, and non-legal conventions. It is not therefore possible to identify specific “provisions in the constitution”. It makes little difference for these purposes whether particular provisions which serve to regulate emergencies are to be considered “constitutional” or “part of the constitution”. States of emergency are generally regulated by ordinary statutes.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The UK legal order does not provide for "constitutional" or "organic" legislation, i.e. laws which are above ordinary statutes and are adopted by a supermajorities or in special procedures.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The UK legal order does not provide for "constitutional" or "organic" legislation, i.e. laws which are above ordinary statutes and are adopted by a supermajorities or in special procedures. Furthermore, since UK is composed of four legal orders, the term “UK law” refers to law which applies without (significant) differentiation across the four nations of the UK.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
There is no constitutional framework providing for the "declaration for the state of emergency", but the Government enjoys exceptional regulatory powers to issue emergency regulations under the CCA (see Q2) and under s. 45C PH(CoD)A.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
There is no constitutional framework providing for the "declaration for the state of emergency", but the Government enjoys exceptional regulatory powers to issue emergency regulations under the CCA (see Q2), and those regulations are subject to the approval by Parliament.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
There is no constitutional framework providing for the "declaration for the state of emergency", but some of the regulations made under the PH(CoD)A (see Q3)were subject to judicial review.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Human rights are safeguarded in the UK on the domestic level by the HRA ("the Human Rights Act"). This Act effectively incorporates the ECHR into domestic law, by imposing on public authorities an obligation to comply with the Convention rights (s. 6) (including when making delegated legislation), creating a cause of action for those who allege a violation of their Convention rights (ss. 7-8), and empowering the courts to interpret statutes in conformity with the Convention rights (s. 3). Where a statute cannot be interpreted to be consistent with the Convention, it remains valid, but the court may issue a declaration of incompatibility (s. 4).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Speaking of a formal "derogation", the Secretary of State has not exercised the power under s. 14 HRA set out in the answer to Q7. There is no other process for derogation from the rights safeguarded by the HRA under domestic law. However, the regulations adopted ynder the the PH(CoD)A and the coronavirus act (see Q3) have limited certain rights and freedoms.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
There is no constitutional framework providing for the "declaration for the state of emergency", but the Government enjoys powers to issue emergency regulations under the CCA (see Q2).
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The powers of the executive are defined by the ordinary legislation, which entitles the executive to make public health regulation even where there is no emergency. Some of this ordinary law is preexisting (like the CCA or the PH(CoD)A), some legislation was created specificaly for the purposes of dealing with the COVID-19 crisis (like the CA).
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
Parliament was not suspended during the pandemic, save for as a result of its ordinary adjournments. There were however significant changes to the way it operates. These rules on Parliament’s functioning were determined by Parliament, but with significant de facto influence from the executive in the House of Commons. (This section does not consider measures adopted in the devolved legislatures: the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembl)y.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
The UK does not have a constitutional court. The Supreme Court of the United Kingdom does not act as a constitutional court (arguably save for, exceptionally, when it hears references about the validity of devolved legislation, which could not be brought by a private citizen). The Supreme Court has since 23 March 2020 heard all its cases remotely, via videoconferencing software. Its sessions were not suspended because of the pandemic.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
There have been over 200 statutory instruments in England alone responding to various aspects of the crisis, enabled by over 100 pieces of parent legislation.
14. Was this additional legislation subject to judicial review?
In the UK, there is no judicial review of the legsilation as in some continental systems, but the courts can verify the compliance with the Convention of the statutory intrstruments (and issue declaratory judgments). Furthermore, judicial review of the regulations issued by the executive is also possible.
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
No state of emergency was declared, and so this question falls away. However, the legislation adopted during the crisis (the CA) is of a temporary nature and has a sunset clause. Furthermore, the power of the executive to issue emergency regulations, given by ordinary status, also provides that those regulations have a validity limited in time and must be approved by Parliament, within a certain time-frame (see Q4 and Q5).
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
In each of England and Wales, Scotland, and Northern Ireland, individuals can bring applications for judicial review alleging that a public act or decision was unlawful. Judicial review has been available against general measures, as well as individual applications of them (subject to the requirement to exhaust avenues of appeal) throughout the pandemic crisis and some challenges have been brought.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No parliamentary or presidential elections were due to take place.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Certain local elections were postponed by one year as a result of the Covid-19 pandemic. The decision to do so was taken by Parliament when it passed the CA, which provided the legal basis for the postponement in ss. 59 – 64:
United Kingdom
The United Kingdom is comprised of four different nations, each of which has, to a greater or lesser extent, its own legal system. Accordingly, it is at times necessary to consider each jurisdiction individually.
The closest provision to a “state of emergency” law in the UK is Part 2 of the Civil Contingencies Act 2004 (“CCA”). There are other provisions which permit the government to act with urgency in response to crises in specific fields (such as the Public Health (Control of Disease) Act 1984 (“PH(CoD)A”), but the CCA contains general emergency response powers.
The power conferred by Part 2 of the CCA is a sweeping regulation-making power, under which the Queen may, by Order in Council, make “emergency regulations”. In practice, this is a power which would be exercised only on the advice of the government, and chiefly the Secretary of State for the Home Department.
This power is extremely broad. Emergency regulations may make any provision which the person making the regulations is satisfied would be appropriate for preventing, controlling or mitigating an aspect or effect of the emergency (s. 22(1)). S. 22(3) provides a list of examples of the kind of regulation which could be made. That list notably includes the power to confer a function on an authority or person, confiscate property, create offences (within limits: see s. 23(4)), prohibit travel and gatherings, modify or disapply any act of Parliament (except Part 2 of the CCA and the Human Rights Act 1998 (“HRA”), see s. 23(5)) and deploy the armed forces. However, regulation may not require a person to provide military service or prohibit or enable the prohibition of strikes or industrial action (s. 23(3)).
The regulation must specify the parts of the UK to which it applies (s. 23(2)). It must also require the appointment of a regional or emergency coordinator for each part or region of the UK to which the emergency regulations apply (s. 24(1)).
The regulations will lapse either after 30 days or earlier if specified in the regulations (s. 26(1)). If the regulations lapse, new regulations may be made to replace them (s. 26(2)).
The power to make emergency regulation can also be exercised by a senior minister of the Crown, if it would not be possible, without serious delay, to arrange for an Order in Council (s. 20(2)(b)). “Serious delay” means delay that might cause serious damage, or seriously obstruct the prevention, control or mitigation of serious damage. In practice, this responsibility would most likely fall to the Secretary of State for the Home Department.
The state of emergency which can be declared under the CCA does not have effect across the legal system. The CCA provides a general, cross-sectoral framework for emergency response, but a statutory statement that the conditions in s. 21 are fulfilled does necessarily not trigger legal effects under other statutes which might provide for emergency powers where certain conditions are met.
(a) England and Wales
The primary law governing health risks arising from infectious disease in England and Wales is the Public Health (Control of Disease) Act 1984 (PH(CoD)A). The Act grants certain powers to public officials, primarily magistrates and the appropriate minister (defined in s. 45T(6) as meaning the Welsh ministers in respect of Wales, and the Secretary of State in respect of England), to take steps to prevent the transmission of infectious diseases.
(i) Magistrate’s Power to Control Disease
The regulation-making power of the appropriate minister under the statute is defined by reference to the powers of magistrates. The scheme of the Act is to divide the powers of magistrates into orders concerning persons, orders concerning things, and orders concerning premises.
A magistrate may make an order on application from the local authority under s 45G if satisfied that a person is or may be infected, with an infection which presents or could present significant harm to human health, that there is a risk that the person may infect others, and that it is necessary to make the order to remove or reduce the risk (s. 45G(1)). The list of possible orders is set out at s. 45G(2):
The order may impose on or in relation to P one or more of the following restrictions or requirements - submitting a person medical examination, mandatory hospitalisation, imposition of isolation or quarantine, disinfection of the person, the person must provide information about his/her health, subjecting the person to restrictions on where the person goes or with whom that person has contact, and that the person must abstain from working or trading.
The Act provides for analogous powers in respect of things and premises. In respect of things, s. 45H(2) sets out what the magistrate may order that the thing be seized or retained; that the thing be kept in isolation or quarantine; that the thing be disinfected or decontaminated; in the case of a dead body, that the body be buried or cremated; in any other case, that the thing be destroyed or disposed of.
In respect of premises, s. 45I(2) provides that the order may impose the for example the following restrictions or requirements: that the premises be closed, disinfected or decontaminated, or destroyed.
(ii) Power to make Regulation
The Act also empowers the appropriate minister to make regulations which apply generally, on top of the power of magistrates to make orders in respect of particular persons, things or premises.
There are two primary relevant regulatory powers under the Act: the power to make international travel regulations under s. 45B and the power to make domestic regulations under s. 45C. In respect of both, there is a common list of example powers which the regulations may contain (s. 45F(2)):
Health protection regulations may confer functions on local authorities and other persons; create offences; enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances; provide for the execution and enforcement of restrictions and requirements imposed by or under the regulations; provide for appeals from and reviews of decisions taken under the regulations; permit or prohibit the levy of charges; permit or require the payment of incentive payments, compensation and expenses; provide for the resolution of disputes.
Regulations under either s. 45B or s. 45C may amend an enactment in order to give effect to an international agreement (s. 45F(3)). Under neither provision can a regulation require a person to undergo medical treatment, including vaccination or other prophylactic treatment (s. 45E). There are restrictions on the kinds of offences which can be created by regulation under either provision: s. 45F(5)-(5A).
The conditions precedent to the exercise of each power, and the scope of each power, are set out in more detail in the relevant enabling provisions.
S. 45B empowers the appropriate minister to make provision to prevent danger to public health or the spread of infection from conveyances, or to give effect to an international agreement relating to the spread of infection or contamination (s. 45B(1)). S. 45B(2) provides further detail as to what those regulations may provide:
Regulations under subsection (1) may in particular include provision for the detention of conveyances, for the medical examination, detention, isolation or quarantine of persons, for the inspection, analysis, retention, isolation, quarantine or destruction of things, for the disinfection or decontamination of conveyances, persons or things or the application of other sanitary measures, for prohibiting or regulating the arrival or departure of conveyances and the entry or exit of persons or things, imposing duties on masters, pilots, train managers and other persons on board conveyances and on owners and managers of ports, airports and other points of entry, and requiring persons to provide information or answer questions (including information or questions relating to their health).
S. 45C provides that the Secretary of State is empowered to “by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere)” (s. 45C(1)). Regulations made under s. 45C may make provision in relation to infection generally, or in relation to particular forms of infection; and in respect of either can make provision which is general, contingent, or specific to a particular set of circumstances (s. 45C(2)).
S. 45C sets out a cascade of health regulations which the minister may make, with increasingly stringent conditions the more invasive the regulation is. The provision operates by setting out non-exclusive examples of the type of intervention permissible, rather than finite lists of powers.
The first type of regulation is a regulation which does not impose or enable the imposition of restrictions or requirements on people, things, or premises. Examples are set out in s. 45C(3)(a)-(b), which refer to duties on medical practitioners to record or notify cases; or conferring monitoring functions on public authorities. There are no specific limits on the exercise of this power beyond the fact that the provision must be for the purposes set out in s. 45C(1) and reproduced above.
The second type of regulation is a regulation which imposes or enables the imposition of restrictions or requirements on people, things, or premises, aside from “special restrictions or requirements”. A special restriction or requirement is defined as a restriction or requirement which can be imposed by a magistrate by virtue of ss. 45G(2), 45H(2) or 45I(2) (which are reproduced above) (s. 45C(6)(a)). S. 45C(4)(a)-(c) provides examples of non-special restrictions or requirements: they refer to keeping a child away from school, prohibiting or imposing restrictions on an event or gathering, or imposing restrictions or requirements on the handling of human remains.
This second type of regulation can be imposed only “in the event of, or in response to, a threat to public health” (s. 45C(3)(c)). Further, the regulation may only impose restrictions or requirements if “the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it,” (s. 45D(1)). Alternatively, if the regulation enables the imposition of a restriction or requirement, the person empowered to impose that restriction or requirement under the regulation must be required to consider that the restriction or requirement is proportionate before they are able to exercise that power (s. 45D(2)).
The third type of regulation is a regulation which imposes or enables the imposition of special restrictions and requirements (s. 45C(4)(d)). In addition to meeting the requirements of “threat to public health” and proportionality applicable to the second type of regulation, there are additional limitations depending on whether the regulation directly imposes the special restriction or requirement, or merely enables the imposition of the restriction or requirement (see the distinction set out in s45D(5)).
If the regulation imposes the special restriction or requirement directly (that is, without any subordinate decision being required before the restriction/requirement is imposed (s45D(5)(b))), then it is subject to the same requirements of “threat to public health” and proportionality applicable to the second type of regulation and set out above. Such a regulation may not directly impose special restrictions or requirements of the sort set out in s. 45G(2)(a)-(d): namely that a person submit to medical examination; be removed to or detained in a hospital or other suitable establishment; or be kept in isolation or quarantine. If these measures are thought necessary, the regulation must enable the decision to impose the restriction or requirement, as set out immediately below.
If the regulation is to enable an authority or person to by subordinate decision impose a special restriction or requirement (s. 45D(5)(a)), it must meet a heightened threshold under s. 45D(4), which provides: regulations under section 45C may not include provision enabling the imposition of a special restriction or requirement unles the regulations are made in response to a serious and imminent threat to public health, or imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed.
Therefore, it is a condition precedent to enabling the imposition by decision of special restrictions or requirements that the regulation in question is made in response to a “serious and imminent” threat to public health; or alternatively makes the exercise of such power under the regulation contingent on the existence of such a threat. Further, additional safeguards are required where regulations have this effect: there must be a right of appeal against the decision imposing the restrictions or requirements (s. 45F(6)), there must be provision for review of any detention, isolation or quarantine at specified intervals of not more than 28 days (s. 45F(7)-(8)).
A regulation promulgated under s. 45C, which imposes or enables the imposition of a special restriction or requirement, may not be made unless it has been laid before Parliament in draft and approved by a resolution of each House of Parliament, or in the case of Welsh regulations, before the National Assembly for Wales (s. 45Q(4)). However, if the appropriate minister determines that, by reason of urgency, it is necessary to make the regulation without the draft being laid and approved, the regulation can be made without these steps being taken (s. 45R(2)). Once a regulation is made under this emergency procedure, it must be laid before each House of Parliament or the National Assembly for Wales, as applicable (S. 45R(3)). Regulations made under this procedure will cease to have effect at the end of a period of 28 days beginning with the day on which the order is made unless approved by resolution of each House of Parliament, or of the National Assembly for Wales, as applicable (s. 45R(4)); or if rejected by either House of Parliament, or the National Assembly for Wales, before that point, at the end of the day on which the regulations were rejected (s. 45R(5)).
(b) Northern Ireland and Scotland
The public health statutes applicable in Northern Ireland and Scotland did not provide for the powers necessary to create broad, general measures of this sort (see the Public Health etc. (Scotland) Act 2008 and the Public Health Act (Northern Ireland) 1967 (“PHA(NI)”)) prior to the Covid-19 pandemic. Such powers were accordingly created by the Coronavirus Act 2020 (“CA”).
(i) Northern Ireland
S. 48 of the CA provides that Schedule 18 of that Act contains temporary modifications to the PHA(NI). Schedule 18 of the CA temporarily inserts ss. 25A – 25Y into PHA(NI). Those provisions are largely (with appropriate modifications made for the Northern Ireland legal context) lifted from the PH(CoD)A and create powers materially identical to the powers available in respect of England and Wales, including identical provisions for making urgent regulation and submitting them to review by the legislature (in Northern Ireland’s case, the Northern Ireland Assembly) (ss. 25P - 25Q).
(ii) Scotland
S. 49 of the CA provides that Schedule 19 of that Act contains “provision enabling the Scottish Ministers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland[.]”
Schedule 19 provides for regulation-making powers in the following way. Paragraph 1 contains a materially identical power to that contained in s. 45C PH(CoD)A. Paragraphs 2 and 3 contain materially identical restrictions to the exercise of that power as are contained in s. 45D and s. 45E PH(CoD)A. Paragraph 4 replicates the definition of “special restriction or requirement” contained in s. 45C(6) PH(CoD)A. Paragraph 5 contains materially identical elaborations on the power to those contained in ss. 45F and 45P PH(CoD)A (with appropriate amendments to reflect the Scottish legal context). Paragraph 6 sets out the procedure for the making of regulations under Schedule 19. It provides for a materially equivalent ordinary and urgent process for the making of regulations as PH(CoD)A, save that the regulations must be laid before the Scottish Parliament rather than the UK Parliament. (There does not appear to be an equivalent provision regulating what happens if the Scottish Parliament rejects urgent regulations laid before it).
Therefore, for the purposes of a comparative rule-of-law assessment at the European regional level, it can be assumed that the public health regulation-making powers are effectively the same across the UK.
The threshold for the use of emergency powers under the CCA is extremely high. The CCA has never been used, and its predecessor provision was used only five times in 84 years. The emergency powers under the CCA were not used to respond to the Covid-19 pandemic, nor to the terror attacks which have occurred since 2004 in the UK, nor to the 2011 riots which occurred in London and other cities. The current government guidance is that resilience authorities should assume that the powers will not be used, and that, as has happened in the Covid-19 pandemic, it will often be more appropriate to pass a specific Act of Parliament dealing with the emergency than to invoke the CCA.
Theoretically speaking, under the CCA, emergency regulations can be made under s. 20 where the person making the regulations is satisfied that the following conditions are met (s. 20(1), s. 20(2)(a); s. 21(2)-(4); s. 23(1)):
- That an emergency has occurred, is occurring or about to occur. Emergency is defined in s. 19(1) as: (a) an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region, (b) an event or situation which threatens serious damage to the environment of the United Kingdom or of a Part or region, or (c) war, or terrorism, which threatens serious damage to the security of the United Kingdom. The remainder of s. 19 goes on to provide additional detail about what amounts to a threat of serious damage to human welfare or the environment;
- That it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency;
- That the need for that provision is urgent;
- That the provision is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made;
- That the effect of the provision is in due proportion to that aspect or effect of the emergency.
In order for emergency regulations to be made under the CCA, the person making the relations must preface them with a statement which specifies the nature of the emergency in respect of which the regulations are made, and declares that the person making the regulations is satisfied (s. 20(5)):
- that the conditions in section 21 are met;
- that the regulations contain only provision which is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made;
- that the effect of the regulations is in due proportion to that aspect or effect of the emergency; and,
- that the regulations are compatible with the Convention rights (within the meaning of section 1 of the Human Rights Act).
If a senior minister purports to exercise the power to make emergency regulations under s. 20(2)(b), they must also state that they are satisfied that it would not be possible, without serious delay, to arrange for an Order in Council (s. 20(5)(b)(v)).
In addition, the Covid Act (the CA) passed in 2020 is of a clearly temporary nature. The CA’s temporary and exceptional nature is indicated by two provisions: the major provisions of the Act will cease to apply after two years (s. 89). This can be extended, but only by six months at a time (s. 90(2)-(3)). There is a power to bring forward the expiry date of the Act (s. 90(1)). The Act is subject to six-monthly parliamentary review (s. 98), at which point the House of Commons may decline to accede to a motion that the CA not yet expire. If the House so declines, the power in s. 90(1) must be exercised to bring forward the expiry date of the CA to not later than 21 days after the rejection.
When emergency regulations are made under the CCA, they must be laid before Parliament as soon as reasonably practicable (s. 27(1)(a)). Once laid, they will lapse within 7 days unless each House of Parliament passes a resolution approving them (s. 27(1)(b)). Parliament may by resolution of both Houses annul or amend the emergency regulation (s. 27(2)(3)), although Parliament doing so does not prevent the making of new regulations (s. 27(4)(a)). If Parliament is prorogued, or either House is (or both Houses are) adjourned at the time the regulations are made, Parliament or the House in question must be recalled to meet within 5 days (s. 28(1)-(3)).
Further, if the regulations relate wholly or in part to Scotland, Wales, or Northern Ireland, a senior Minister of the Crown must consult the relevant devolved executive (s. 29(1)-(3)), although this requirement can be waived if the situation is urgent, and a failure to consult does not affect the validity of any subsequent emergency regulations (s. 29(4)).
This scrutiny notwithstanding, this reflects a significant law-making power for the executive. These emergency powers are constrained in duration, and contain protections for human rights, but are otherwise vast in scope.
As to specific legislation on health hazards (PH(CoD)A) - see Q3. In England and Wales the Public Health (Control of Disease) Act 1984 (PH(CoD)A) allows the executive to make regulations; a regulation promulgated under s. 45C of this Act, which imposes or enables the imposition of a special restriction or requirement, may not be made unless it has been laid before Parliament in draft and approved by a resolution of each House of Parliament, or in the case of Welsh regulations, before the National Assembly for Wales (s. 45Q(4)). However, if the appropriate minister determines that, by reason of urgency, it is necessary to make the regulation without the draft being laid and approved, the regulation can be made without these steps being taken (s. 45R(2)). Once a regulation is made under this emergency procedure, it must be laid before each House of Parliament or the National Assembly for Wales, as applicable (S. 45R(3)). Regulations made under this procedure will cease to have effect at the end of a period of 28 days beginning with the day on which the order is made unless approved by resolution of each House of Parliament, or of the National Assembly for Wales, as applicable (s. 45R(4)); or if rejected by either House of Parliament, or the National Assembly for Wales, before that point, at the end of the day on which the regulations were rejected (s. 45R(5)).
Similar provisions on the parliamentary approval of emergency regulations on health hazard grounds exist in N. Ireland and Scotland, as regulated by the Coronavirus Act 2020 (“CA”) - see Q3.
In addition, the Covid Act (the CA) passed in 2020 is of a clearly temporary and exceptional nature, which is indicated by two provisions: the major provisions of the Act will cease to apply after two years (s. 89). This can be extended, but only by six months at a time (s. 90(2)-(3)). There is a power to bring forward the expiry date of the Act (s. 90(1)). The Act is subject to six-monthly parliamentary review (s. 98), at which point the House of Commons may decline to accede to a motion that the CA not yet expire. If the House so declines, the power in s. 90(1) must be exercised to bring forward the expiry date of the CA to not later than 21 days after the rejection.
The UK has not derogated from the European Convention in response to Covid-19 pandemic; however, derogations are possible in theory under the HRA.
S. 14 empowers the Secretary of State to “designate” a derogation from the ECHR which has been or is anticipated to be made as a matter of international law. Once the Secretary of State does so, the derogation takes effect in domestic law by causing the removal of the rights to which it relates from the definition of “Convention rights” in s. 1, in accordance with s 1(2).
There has only been one derogation ever made (and subsequently withdrawn) under s. 14, which was made to Art. 5(1) ECHR in 2001. That derogation was challenged by judicial review: A v Secretary of State for the Home Department [2004] UKHL 56. It was conceded by the government, and accepted by the House of Lords (see §42; §106; §164; §225, with some reluctance from Lord Scott: §152) that a designation of a derogation in domestic law by order of the Secretary of State can validly take effect only if the international legal conditions precedent for a derogation under Art. 15 ECHR have been met (including, it must be assumed, the restrictions on derogations from certain rights contained in the Convention). Lord Hope summarised the test as follows (§110): "Leaving a state of war aside as it does not arise in this case, the wording of this article can be broken down into three parts, each of which can be put in the form of a question. (1) Is the situation facing the High Contracting Party a public emergency which threatens the life of the nation? (2) Are the measures strictly required by the exigencies of the situation which has arisen? (3) Are the measures inconsistent with the High Contracting Party's other obligations under international law?"
This section deals in brief summary with the restrictions imposed by regulation across the UK. It deals briefly with the restrictions imposed in Scotland and Northern Ireland, even though the powers used in those jurisdictions for the imposition of “lockdown” were created by the CA, and so do not derive from ordinary law which existed prior to the pandemic. The focus is on England as an example jurisdiction, and there is no attempt to exhaustively list the applicable regulations. There have been over 200 statutory instruments in England alone responding to various aspects of the crisis, enabled by over 100 pieces of parent legislation.
A review of the legislation across the jurisdictions suggests that broad use has been made of the powers set out above, and that the emergency procedure sees a lot of use. This has meant that, although Parliament has had a role in scrutinising the government and debating the pandemic in the abstract, there has been limited opportunity for Parliament to scrutinise the text of the regulations.
(i) England
In England, the first wide-ranging public restrictions were imposed by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 on 26 March 2020, requiring certain businesses to close (reg. 5), imposing restrictions on leaving the home without reasonable excuse (reg. 6) and prohibiting gatherings of more than two people in public (reg. 7). The Regulations create enforcement powers (reg. 8) and offences (reg. 9). A further regulation, The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020/447, was passed to correct errors in the first one. Further amendments were made by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020/500. On 1 June 2020 came the first major change to the restrictions, with the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020/558, permitting groups of up to six to meet outdoors and groups of two to meet indoors (although not to stay overnight at a place other than home). On 12 June the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020/588 permitted the opening of retail businesses, religious institutions for private prayer, and certain outdoor attractions.
On 3 July 2020 the restrictions were significantly relaxed by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020/684. Further relaxation of measures was brought about on 11 July 2020 by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) Regulations 2020/719; and on 23 July 2020 by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 2) Regulations 2020/788. Local authorities were empowered to give directions relating to premises, events and outdoor spaces by the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020/750. On 14 August 2020 the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 3) Regulations 2020/863 were made, enabling certain venues to open.
On 26 August 2020 gatherings of more than 30 people outdoors were restricted by the Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020/907, and gatherings of groups of more than 6 were restricted by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020. The Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020/1008 subsequently imposed obligations on hospitality undertakings to ensure that guests were socially distanced. The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020/1029 restricted opening hours for certain businesses on 24 September 2020, and additional requirements to self-isolate in certain circumstances were imposed by the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020/1045.
The government has also re-imposed restrictions on a local basis where there has been a spike in cases, and in one case imposed restrictions for employees of a particular company (The Health Protection (Coronavirus, Restrictions) (Greencore) Regulations 2020/921). All of these regulations were made using the emergency procedure and the powers under s. 45C PH(CoD)A.
(ii) Wales, Scotland, and Northern Ireland
The story in the rest of the UK has not been dissimilar, although there have been variations in the speed with which the initial restrictions imposed in March 2020 have been lifted:
In Scotland, restrictions were initially imposed by the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020/103 under the powers created by Schedule 19 of the CA. These regulations were subsequently amended thirteen times as restrictions waxed and waned, each time by use of the emergency procedure. They were finally replaced by the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020/279 on 14 September 2020. These restrictions were imposed using the emergency procedure.
In Wales, the first restrictions were imposed by the Health Protection (Coronavirus) (Wales) Regulations 2020/308. These were repealed by the CA and replaced by the Health Protection (Coronavirus Restrictions) (Wales)Regulations 2020/353 and the Health Protection (Coronavirus: Closure of Leisure Businesses, Footpaths and Access Land) (Wales) Regulations 2020/334. The Regulations were repeatedly amended by the emergency procedure to deal with changes in the coronavirus situation.
In Northern Ireland, the first restrictions were imposed by the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020/55, imposed by the emergency procedure. These were also repeatedly amended by use of the emergency procedure to keep pace with the changing coronavirus situation, under the powers inserted into the PHA(NI) by the CA.
The regulations will lapse either after 30 days or earlier if specified in the regulations (s. 26(1)). If the regulations lapse, new regulations may be made to replace them (s. 26(2)).
In addition, still under the "ordinary law", the executive may use some additional "emergency" powers, over and above the "ordinary" powers enjoyed by the executive. First, this is the power to bring regulations into force immediately, without parliamentary or assembly scrutiny. The excercise of this power depends on it being necessary to make the order without laying a draft, “by reason of urgency”. Second, the power to enable the imposition of special restrictions or requirements depends on the existence of a “serious and imminent threat” to public health.
The power of the executive under the CCA is an emergency regulation-making power. The CCA does not, as might be the case in other jurisdictions, provide for a shift in military or law enforcement command structures, or permit access to emergency budget reserves. Instead, it provides the power to make emergency regulation, and those regulations could (but need not) have that effect, depending on the emergency.
The “normal” law-making powers of the executive, subject to Parliamentary oversight, are very broad. The precise limits on the powers to make emergency regulation conferred on the relevant executive by the PH(CoD)A and analogous provisions are set out in other questions. As to the specific types of limitation referred to in this question, regulations made under the emergency procedure are limited in duration to 28 days, unless approved by the relevant legislature. The circumstances in which emergency regulations under the PH(CoD)A and analogous provisions may be made are described above: there must, in addition to the requirements of the statutory provision, be “urgency” which makes it necessary to forego the draft affirmative procedure. There are no specific limitations on the scope of regulations which can be created by the emergency procedure. Those limitations are the same as the limits applicable to regulations made in accordance with the normal draft affirmative procedure: regulation which imposes restrictions and requirements is only permissible where there is a “threat to public health”. Regulation which enables the imposition of special restrictions or requirements must be in response to a “serious and imminent” threat to public health.
(a) The House of Commons
The House of Commons adjourned as usual for its Easter break on 25 March 2020. In the final days leading up to the Easter break, there had been “exceptional” cross-party cooperation to minimise the disruption caused by the virus and pass the CA. The Commons returned on 21 April (meaning that the Easter recess had been four days longer than it otherwise would have been ), and on the same day it passed a motion proposed by the government committing itself to balancing parliamentary responsibilities with the need to protect public health and the health of members, and it passed a motion proposed by the government as to how certain business (labelled “scrutiny proceedings”) was to be conducted in “hybrid proceedings”. The Commons was to meet Monday – Wednesday to conduct two-hour scrutiny proceedings on each day, meaning questions to ministers, urgent questions, and ministerial statements. Members were able to participate either virtually or by attending the Chamber. The Speaker was empowered to limit the number of MPs in the Chamber at any one time.
The next day, during the first ever hybrid sitting of the Commons, two temporary motions were adopted. The first authorised remote divisions (votes), subject to the caveat that remote divisions would not take place until the system was ready for deployment and the cross-party Procedure Committee had a chance to comment. The system for remote divisions was authorised by the Speaker on 6 May 2020, and is described by the Procedure Committee in its Second Report of Session 2019-2021 at §§20-22. The second introduced hybrid proceedings for substantive proceedings as well as scrutiny proceedings. These measures were renewed on 12 May 2020 until 20 May 2020, with the Procedure Committee’s support. The Leader of the House announced that he did not anticipate extending the measures beyond 20 May 2020. Accordingly, on that date, the remote proceedings provisions were allowed to lapse. Parliament was then in its Whitsun recess from 20 May 2020 to 2 June 2020.
During the Whitsun recess, the Procedure Committee produced a third report. That report expressed concern about the return to ordinary, socially distanced parliamentary proceedings while many of the challenges of the pandemic still pertained. The government, by contrast, was keen to encourage Parliament back to as close to normal working as possible.
On 2 June 2020, a motion was introduced removing parity of participation between members attending virtually and members there in person. Thereafter, voting was done by a process of socially distanced division, despite the concerns of the Procedure Committee. By virtue of a motion on 4 June 2020, it remained possible for MPs who self-certified as being unable to attend in person to take part in scrutiny proceedings remotely. From 10 June 2020, those members were able to vote by proxy. Those arrangements will continue until at least 3 November 2020.
(b) The House of Lords
On 25 March 2020, the House of Lords agreed to restrict its proceedings significantly to only certain scrutiny questions and public bills sponsored by the government. On 21 April 2020 the House of Lords agreed to adopt virtual proceedings, with the following motion:
1. The following proceedings of the House may take place as Virtual Proceedings: Oral Questions, Private Notice Questions, Ministerial Statements, debates (but not decisions) on Statutory Instruments, Questions for Short Debate and motions for debate;
2. The procedure in Virtual Proceedings shall follow, so far as practical, procedure in the House save that
(a) no member may participate unless admitted to the Virtual Proceedings;
(b) the order of speaking in Virtual Proceedings shall be facilitated by the Chair;
(c) the time allotted for Oral Questions shall be extended to 40 minutes to allow up to 10 minutes for each Oral Question;
(d) the time allotted to business in Virtual Proceedings may be varied by unanimous agreement of members taking part in the Virtual Proceedings; and
(e) Virtual Proceedings may be adjourned between items or classes of business at the discretion of the Chair;
3. A Virtual Proceeding may take place irrespective of whether the House is sitting that day;
4. A member may table one Topical Question for Written Answer in each week during which the House sits, and it is expected that it will be answered within five working days;
5. The provisions of this Order shall be applied in accordance with guidance issued under the authority of the Procedure Committee from time to time, which may vary the provisions of the Companion to the Standing Orders insofar as they apply to Virtual Proceedings.
On 4 June 2020, the House agreed to implement a “hybrid House” by which members could participate in business both remotely and physically. On 12 June 2020, revised guidance was published by the Procedure and Privilege Committee on proceedings in the hybrid House, and then further guidance on 24 July 2020. On 2 September 2020, hybrid Grand Committee meetings began. Accordingly, the House of Lords has worked remotely far more than the House of Commons has, but has still been able to perform its essential functions and continue to operate despite the Covid-19 pandemic.
(c) Authorship of these Rules
Each House is in control of its own procedure. It is a matter of the highest constitutional principle that proceedings in Parliament may not be questioned in any court or place outside Parliament (art. 9, Bill of Rights 1688). This protects MPs from libel or prosecution for the things they say on the floor of the House, but also insulates the proceedings of Parliament from judicial scrutiny or executive fiat. However, the House of Commons is generally controlled by the executive. This is so because the Queen must, by convention, appoint as prime minister the person commanding the confidence of the House of Commons, which will almost invariably be the leader of the political party or coalition with the most MPs. It therefore generally lies within the de facto power of the executive to cause the House of Commons to amend its procedures.
For this reason, allocating the authorship of rules between executive and the Commons is difficult: the choice to bring the hybrid arrangements to an end was the choice of the Commons, but one for which government MPs, forming the majority, pressed. The House of Lords, by contrast, is entirely responsible for its own procedure and, as can be seen, has responded to the exigencies of the pandemic differently.
The courts which would at first instance hear a public law or human rights challenge to any public health regulations would be: in England and Wales, the Administrative Court; in Scotland, the Outer House of the Court of Session; and in Northern Ireland, the Queen’s Bench Division of the High Court. These courts did not cease sitting, at least not for urgent matters, and proceedings were conducted remotely so far as possible.
Most of the steps taken to ensure the effective administration of justice were taken by the judiciary themselves, applying the procedures of the court flexibly in order to ensure that civil justice could continue. As the Lord Chief Justice of England and Wales stated: "The rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime we have phones, some video facilities and Skype. The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. That will not always be possible. Sensible precautions should be taken when people attend a hearing. They are now well-known. We all take them when out of the home. There will be bumps along the road as we all get used to new ways of working forced on us the biggest public health emergency the world has faced for a century."
(b) Measures Adopted
Alongside the flexible approach adopted by the courts, Parliament passed measures in the CA to ensure that the administration of open civil justice could continue. S. 55 CA gives effect to Schedule 25, which temporarily inserts s 85A into the Courts Act 2003, and thereby creates a mechanism by which proceedings conducted entirely by video can be made accessible to the public. That section provides:
85A Enabling the public to see and hear proceedings
(1) If the court directs that proceedings are to be conducted wholly as video proceedings, the court —
(a)may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;
(b)may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings.
(2) If the court directs that proceedings are to be conducted wholly as audio proceedings, the court —
(a)may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to hear the proceedings;
(b)may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio record of the proceedings.
(3) A direction under this section may relate to the whole, or to part, of the proceedings concerned.
These powers have not yet been used to their full potential in England and Wales. Instead, Practice Direction 51Y has come into effect, and purports to set out how justice can be administered openly without courtrooms being open. That practice direction provides: 2. During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice. 3. Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made. 4. Any hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. […] On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court.
As regards Northern Ireland, s. 57 CA, through Schedule 27, makes provision for the use of live links in legal proceedings in Northern Ireland.
The CA was passed by the UK Parliament to make provision for the emergency. It is the chief legislative measure across the UK for dealing with the crisis. It passed through Parliament with cross-party support and passed the House of Commons without a vote. The CA’s temporary and exceptional nature is indicated by two provisions: the major provisions of the Act will cease to apply after two years (s. 89). This can be extended, but only by six months at a time (s. 90(2)-(3)). There is a power to bring forward the expiry date of the Act (s. 90(1)).
The Act is subject to six-monthly parliamentary review (s. 98), at which point the House of Commons may decline to accede to a motion that the CA not yet expire. If the House so declines, the power in s. 90(1) must be exercised to bring forward the expiry date of the CA to not later than 21 days after the rejection.
The Scottish Parliament has passed two acts dealing with assorted social protection challenges caused by the crisis: the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No. 2) Act 2020. The Northern Ireland Assembly has passed an Act protecting tenants from eviction and granting the executive certain associated regulation-making powers: the Private Tenancies (Coronavirus Modifications) (Northern Ireland) Act 2020.
The CA was not the subject of a judicial review. Had a party sought to bring a judicial review of the CA, the bases on which it could have been reviewed would be limited to compliance with EU law under the UK’s transition arrangements, or for a declaration of incompatibility under s. HRA, as set out above. Parliament can, aside from the restrictions imposed by EU law, make or unmake any law whatsoever, and those laws will not be subject to judicial review (save for a declaration of incompatibility) or annulment by a court (save for inconsistency with EU law). The two Scottish Coronavirus Acts and the Northern Irish Act were also not challenged by way of judicial review. However, were such a challenge to be brought, it could only be brought for lack of competence, inconsistency with EU law or the HRA, or violation of fundamental principles of the rule of law. If one of these grounds were made out, the Act in question could be declared invalid.
There were human rights and vires challenges to the English lockdown regulations by way of judicial review. These challenges did not succeed, with the restrictions on human rights found to be justified. n R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin), the applicant sought an interim injunction restraining enforcement of the regulations insofar as they prohibited attendance at Friday prayer at his mosque. In order to secure such an injunction, the court held that, in light of the public health crisis, the applicant would have to show a “particularly strong” case that he would be able to show the regulations to be unlawful by virtue of inconsistency with Art. 9 ECHR at trial (§9). The court held at §§18-19: "I turn now to the question of justification. My conclusion is that were this matter to go to trial, it is very likely that the Secretary of State would succeed on his submission that interference with the Claimant’s article 8 rights as a result of the 2020 Regulations is justified. Put in the way that is relevant for the purposes of this application for interim relief, the strong prima facie case the Claimant requires to get over the first American Cyanamid hurdle does not exist.
The Covid-19 pandemic presents truly exceptional circumstances, the like of which has not been experienced in the United Kingdom for more than half a century. Over 30,000 people have died in the United Kingdom. Many, many more are likely to have been infected with the Covid-19 virus. That virus is a genuine and present danger to the health and well-being of the general population. I fully accept that the maintenance of public health is a very important objective pursued in the public interest. The restrictions contained in regulations 5 to 7, the regulations in issue in this case, are directed to the threat from the Covid-19 virus. The Secretary of State describes the “basic principle” underlying the restrictions as being to reduce the degree to which people gather and mix with others not of the same household and, in particular, reducing and preventing such mixing in indoor spaces. I accept that this is the premise of the restrictions in the 2020 Regulations, and I accept that this premise is rationally connected to the objective of protecting public health. It rests on scientific advice acted on by the Secretary of State to the effect that the Covid-19 virus is highly contagious and particularly easily spread in gatherings of people indoors, including, for present purposes, gatherings in mosques, churches, synagogues, temples and so on for communal prayer.
Accordingly, no interim injunction was granted.
In Dolan v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin), the applicants sought permission to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 as amended, as well as an alleged decision to close schools and educational establishments. It was alleged that the regulations were ultra vires the PH(CoD)A; vitiated by a number of public law wrongs (fettered discretion, failure to take into account relevant considerations, irrationality or disproportionality) and inconsistent with Convention rights; namely Arts. 5, 8, 9, 11 and Arts. 1-2 of Protocol 1. Permission was refused on all grounds.
With regard to the question of vires, the court concluded that the Regulations were intra vires the PH(CoD)A. The Court held, at §37: "The provisions of the 1984 Act do provide power for the Secretary of State to take measures, including measures applicable to England generally, for the purpose of combating the spread of infection from a disease such as Covid-19. The powers conferred on the Secretary of State are not limited to making regulations in relation to specific individuals or groups of individuals (or specific premises). The powers are broad powers intended to enable the Secretary of State to adopt a wide range of measures to combat the spread of infection. There are other mechanisms in place under the 1984 Act to ensure that those broad powers are used only in appropriate circumstances and that any restrictions imposed are kept under review. […] The wording in section 45C of the 1984 Act is clear. It is intended to enable the Secretary of State to make general regulations to combat the spread of infection. The provisions that may be made “include” the type of orders that a magistrate could make, such as restrictions on movement and contact and requirements to abstain from working or trading. The provisions are not intended to limit the Secretary of State to making the kind of individualised orders in relation to particular individuals who or are may be infected. Similar provisions apply in relation to premises and things."
The challenges based on domestic administrative law were all refused permission to proceed. In particular, with regard to the requirement of proportionality where regulations made under the PH(CoD)A impose restrictions or requirements, the court held, at §59: "The decision on proportionality and necessity under the 1984 Act and Regulations is, ultimately, for the minister. The courts recognise the legitimacy of according a degree of discretion to a minister “under the urgent pressure of events, to take decisions which call for the evaluation of scientific evidence and advice as to the public health risks [.]"
The human rights challenges were also refused permission to proceed. In respect of Article 5, it was held that a requirement to stay in one’s own home overnight did not amount to a deprivation of liberty within the meaning of that provision. In respect of Article 8, it was not entirely clear whether the court concluded that there had been an interference with the rights guaranteed by Article 8. In any event, the court held any interference to be justified (§§77-78): "On any analysis, it is unarguable that the restrictions imposed here would be a justified if they amounted to an interference with the right to respect for private and family life. The Regulations seek to achieve a legitimate aim, namely the reduction of the incidence and spread of coronavirus. They do that by seeking to reduce the opportunity for transmission between households. That is a legitimate aim and is in accordance with law as the restrictions are included in Regulations made under powers conferred by an Act of Parliament. Any interference is proportionate. The restrictions are limited. Persons remain free to live with family members or friends forming part of their household. They may communicate with other and family members by means of communication such as telephones and, if available, internet facilities. They may physically meet family and friends outdoors (subject to the restrictions on numbers in regulation 7). Given the limited nature of the restrictions, the gravity of the threat posed by the transmission of coronavirus, the fact that the Regulations last for a limited period and have to be reviewed regularly during that period, and restrictions must be terminated as soon as no longer necessary to meet the public health threat, there is no prospect of the current regulations, at the current time, being found to be a disproportionate interference with the rights conferred by Article 8 of the Convention.
The Article 9 issue was adjourned, since the day after the hearing the restrictions were amended to permit attendance at places of worship, and the court required submissions on the effect of this change.
As regards Article 11, the court held that there was an inference with the right to assemble, but that the interference would clearly be justified (§95): "In truth, however, there is no realistic prospect that the courts would find regulation 7 in its current form to be a disproportionate interference with the rights guaranteed by Article 11 of the Convention. The context in which the regulation was made was one of a pandemic where a highly infectious disease capable of causing death was spreading. The disease was transmissible between humans. The scientific understanding of this novel coronavirus was limited. There was no effective treatment or vaccine.
As regards A1-P1, the court held that the applicants had not identified any property with which the restrictions interfered. As regards A2-P1, the court held that there had not in fact been any legal measure which required schools to close. No order had been made to close schools under the CA. Accordingly, the challenge was academic: there was no measure which could be quashed were the applicants to succeed.
Permission to challenge the regulations was accordingly refused on all grounds.
There have also been judicial reviews of measures of economic and social protection adopted under the CA or other empowering legislation. In R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin), an unsuccessful challenge was brought against various economic support schemes on the ground that there existed schemes for the employed and self-employed, but that individuals who were “workers” fell between these schemes, and that this was discriminatory. The challenge was not successful.
In Sharp v Scottish Ministers [2020] CSOH 74, the petitioner alleged that a scheme which gave grants to retail, hospitality and leisure businesses on the basis of the number of properties from which the business traded and the rateable value of those properties was unlawful because it restricted the grants payable in respect of additional properties. This was said to be irrational, and in breach of legitimate expectations. Both basis of challenge were rejected.
In R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin), the applicant challenged the lawfulness of the Adoption and Children (Coronavirus) Amendment Regulations 2020, which amended certain regulatory protections for children in care. The challenge alleged (a) a failure to consult; (b) that the 2020 Regulations were contrary to the objects and purpose of the statutory scheme; and (c) that they were made without regard to the welfare of children, contrary to statutory obligation. All these challenges were rejected, but the court observed: "At the heart of the challenge are two very different views of what the 2020 Regulations did and were designed to do. The Claimant argues that the 2020 Regulations undermine a wide range of statutory protections for vulnerable children, are a disproportionate response to the Covid-19 crisis, and significantly increase the risk to vulnerable children. The Defendant argues that the 2020 Regulations were a temporary and proportionate response which put in place limited flexibility in a number of absolute requirements in order to prioritise the needs of children by supporting the delivery of services at an exceptionally challenging time."
For the judicial review of the legislation see Q14.
Further, in England and Wales under the PH(CoD)A and under the equivalent provisions in Northern Ireland, there must exist under any regulations which enable the imposition of special restrictions and requirements on individuals a right of appeal against the decision to impose the restriction or requirement (s. 45F(6) PH(CoD)A; s. 25F(8) PHA(NI)). A similar right of appeal must exist for any regulation made by the Scottish ministers in respect of Scotland (CA Schedule 19 para 5(5)).
The measures introduced by emergency regulation have not affected the jurisdiction of the ordinary courts to review the regulations for their legality, nor, where no appeal lies, to review individual measures taken under those regulations.
As deminstrated above, none of the challenges so far brought alleging the invalidity of a public health regulation made to respond to the Covid-19 pandemic has resulted in the regulation in question being declared invalid.
I
In respect of local council elections, s. 60 provides that “the poll for the ordinary election of councillors for any local government area in England that would otherwise be held on the ordinary day of election in 2020 is to be held instead on the ordinary day of election in 2021.” The relevant terms of elected officials were extended accordingly by s. 60(2).
The election of the Mayor of London was postponed by s. 60(6), as was the election of mayors of local and combined authorities by s. 60(8) and (10).
The election of Police and Crime Commissioners was postponed by s. 60(12).
S. 64 makes amendments to the provisions governing timing of elections in Northern Ireland.
S. 61 of the CA provides a power for the Secretary of State to delay elections due to be held between 16 March 2021 and 5 May 2021, but only up to 6 May 2021.
As for the constitutional position, this decision, being part of an Act of Parliament, would only be subject to judicial review on the limited grounds that it was inconsistent with EU law, or if an applicant sought a declaration of incompatibility with the Convention rights. There has been no attempt to judicially review the decision taken by Parliament to delay these elections.