Coronavirus and Civil Liberties in the UK

Abstract

Click to increase image sizeClick to decrease image size Notes1 As extended by the Emergency Powers (Defence) Act 1940 and subsequent Parliamentary resolutions.2 Where the use of such force is (i) reasonable and (ii) necessary in the exercise of the power to remove that person to the place where they are living: see e.g. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg. 8(3)(b) and (4).3 See e.g. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg. 5.4 See e.g. ibid., reg. 8(9), (10) and (4).5 Cf the powers in s. 51 and Sch. 21 (powers relating to potentially infectious persons) and s. 52 and Sch. 22 (powers to issue directions relating to events, gatherings and premises) to what is now the Coronavirus Act 2020 (c.7), which provisions came into force on 25 March 2020, the date of Royal Assent (see s. 87(1) of the 2020 Act).6 Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020; Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020; Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020.7 They must be approved subsequently by each legislature: Public Health Control of Diseases Act 1984, s. 45R in the case of the English Regulations and the Welsh Regulations; Sch. 19, para. 6(3) to the Coronavirus Act 2020 for Scotland; and s. 25Q of the Public Health Act (Northern Ireland) 1967 for Northern Ireland.8 Health Protection (Coronavirus) Regulations 2020 passed to meet the threat of quarantined persons returning from an area of infection or suspected of being infectious for screening and quarantine. The vires for aspects of these Regulations was unclear and detailed provisions are now contained in the Coronavirus Act 2020, Sch. 22.9 “How coronavirus advice from Boris Johnson had changed”, The Guardian (23 March 2020).10 “Stay local to exercise, says government”, BBC News (27 March 2020); see also Gov.uk Guidance.11 The interview was on BBC World at One (30 March 2020); an edited transcript is available at https://www.spectator.co.uk/article/former-supreme-court-justice-this-is-what-a-police-state-is-like-.12 “Lord Sumption warms against police overstepping limits”, The Times (31 March 2020).13 “The Times View on Enforcement of Coronavirus laws: Policing by Consent”, The Times (1 April 2020).14 See e.g. “Coronavirus: Easter egg crackdown over essential status ‘wrong’”, BBC News (30 March 2020).15 See e.g. “Woman Fined £660 for ‘crime that doesn’t exist’”, The Times (2 April 2020).16 See <https://www.walesonline.co.uk/news/wales-news/coronavirus-superheroes-run-spiderman-incredible-18037188> (accessed 28 May 2020).17 COVID-19 – Policing brief in response to Coronavirus Government legislation, National Police Chiefs’ Council, College of Policing, 31 March 2020.18 See National Police Chiefs’ Council and College of Policing, “Covid-19: Policing Brief response to Coronavirus Legislation” (31 March 2020); and “Coronavirus Act 2020 (the Act): Support Public Health – exceptional powers for exceptional circumstances only” (3 April 2020).19 Cf Sch. 21 to the 2020 Act, para. 14(3)(e) of which makes provision to require a person (in England) to remain at a specified place in isolation from others for a specified period but only in certain limited circumstances and after either (i) screening or assessment for the virus confirming infection or being inconclusive or (ii) assessment by a public health officer finding reasonable grounds to suspect that the person is potentially infectious (para. 14(1)(a) and (b) respectively).20 England Regulations, reg. 3(1)(b). As soon as the Secretary of State considers that any restrictions or requirements set out in the Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, the Secretary of State is required to (“must”) publish a direction terminating that restriction or requirement: reg. 3(3).21 Subject to exceptions for hospital, care home, school, prison and armed forces canteens, and for services feeding the homeless – as well as for workplace canteens where there is no practical alternative (England Regulations, Sch. 2, para. 2).22 Regulation 9(1)(a).23 The requirement in reg. 8(3) is simply that the relevant person “considers” the individual to be outside their home in contravention of reg. 6(1): contrast, for example, reg. 8(2), which provides for the giving of a prohibition notice where the relevant person “reasonably believes” there is a contravention of reg. 4 or 5.24 See National Police Chiefs’ Council and College of Policing (n. 17 above).25 Available here: England <http://www.legislation.gov.uk/uksi/2020/350/made>; Wales <https://www.legislation.gov.uk/wsi/2020/353/contents/made>; Scotland <http://www.legislation.gov.uk/ssi/2020/103/regulation/5/made>; and Northern Ireland <https://www.health-ni.gov.uk/publications/health-protection-coronavirus-restrictions-northern-ireland-regulations-2020>.26 Available here: UK <https://www.gov.uk/coronavirus>; Wales <https://gov.wales/coronavirus>; Scotland <https://www.gov.scot/coronavirus-covid-19/>; and Northern Ireland <https://www.nidirect.gov.uk/campaigns/coronavirus-covid-19>.27 Paragraph 81 of the judgment reads: “The argument that the restraint here was not sufficiently “complete” for the purpose of the tort for like reasons also leads nowhere. It suffices that, under force of compulsion of the notice of restriction (coupled with the threat of criminal sanction and with tagging), IJ was, and felt himself to be, obliged to be confined within the parameters of his home during the specified hours. That, moreover, cannot possibly be equated with a “mere restriction on movement”, as was suggested.” Whilst the claimant in Jalloh was subject to an electronic tag, this was not a decisive factor in the reasoning of the court and is not a basis for distinguishing that case from the present circumstance.28 Health and Social Care Act 2008, s. 129.29 Jeff King, “The Lockdown is Lawful” (UKCLA Blog, 1 April 2020).30 David Anderson QC, “Can we be forced to stay at home?” (Personal Blog, 26 March 2020).31 The Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020.32 David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, Law of the European Convention on Human Rights, 4th edn (2018), p. 294.33 Alan Greene, “States should declare a State of Emergency using Article 15 ECHR to confront the Coronavirus Pandemic” (Strasbourg Observers Blog, 1 April 2020).34 See n. 11 above.35 For a graphic representation of measures around the world as at 18 March 2020 and as at 25 March 2020, see <https://twitter.com/O_LJ/status/1242770509395345409> (accessed 28 May 2020).36 See <https://twitter.com/bricksilk/status/1245291965886980096> (accessed 28 May 2020).37 See <https://twitter.com/legalhackette/status/1245368366568800257> (accessed 28 May 2020).