Today the House of Lords Constitution Committee reports to the House on the Coronavirus Bill. This is an emergency measure introduced in the Commons last Thursday. It passed through its Commons stages on Monday and came to the Lords today with a view to its enactment tomorrow.
The context of a global pandemic, now being felt in every household in the United Kingdom, creates a paradox for constitutionalists. On the one hand, the UK and devolved governments must be empowered quickly with the tools they need to protect public safety; on the other, hasty law-making can lead to confusing or ineffective law, and, more consequentially, the undermining of individual liberties. It is with this balance in mind that the Committee addresses the Bill.
The Bill is complex and lengthy, containing 87 clauses and 27 schedules. It has significant potential constitutional and civil liberties implications in relation to powers of detention and quarantine, restrictions on free assembly and the conduct of criminal trials. It also creates extensive delegated powers, including Henry VIII powers, that are subject to limited, and in some cases no, parliamentary scrutiny. It inevitably implicates devolution, according wide powers to the three devolved executives, all to be coordinated through the Civil Contingencies Committee (COBR). The challenges facing parliamentary staff and legal advisers in assessing its implications were considerable.
The Committee is aware of the pressing crisis that has led to this Bill and potential constitutional objections to which it gives rise are viewed through this prism. The Committee endorses the purpose and content of the Bill. Nonetheless, it does identify a number of concerns which it draws to the attention of the House and asks the Government to address.
The Bill is of course a fast-tracked measure. The Committee has been critical of this process and of its increased usage in recent times. However, in noting that this procedure is acceptable “only in exceptional circumstances and with the agreement of the usual channels”, the Committee concludes: “The coronavirus pandemic fulfils these criteria”.
A danger with emergency legislation, particularly when it is fast-tracked and denied adequate parliamentary scrutiny, is that it is then difficult to remove from the books. The published Bill had a sunset clause of two years, extendable by six months (clause 75). The Government agreed to an amendment, to the effect that its powers expire after six months, any subsequent renewal falling subject to Parliament’s consent. Also, a number of measures in the Bill are subject to more restrictive sunset provisions, while the Bill further provides for the possibility of early repeal. The Committee concludes: “The inclusion of sunset provisions in the Bill is essential. Two years would have been too long for these powers to have operated without re-approval by Parliament and we welcome the cross-party agreement to reduce the period to six months.”
The Bill is replete with delegated powers. These are broadly framed, include Henry VIII powers, and are often subject to limited or no form of parliamentary scrutiny. The Delegated Powers and Regulatory Reform Committee in its report to the House of Lords stated (at para 28) that “had the country not been in the midst of a developing national emergency, there are powers in this Bill, including far-reaching Henry VIII powers, about which our commentary would have been far more trenchant and our recommendations far more robust.” The Constitution Committee agrees but in doing so emphasises the need for oversight:
The delegated powers in the Bill are very broad and would not be acceptable save for the exceptional circumstances. The sunset clause, robust parliamentary scrutiny of the powers, and adequate provision for administrative and judicial oversight are imperative for the granting of such significant powers to ministers.
The powers given to Government are nonetheless extraordinary and the ensuing risk to civil liberties significant. The Secretary of State has the power to suspend relevant port operations, including airports. This can be done by direction on a subjective basis, where she is satisfied that “there is a real and significant risk” (Schedule 19, paragraph 1) that justifies such a course of action. These directions may only last six hours subject to renewal, but their potential length is indefinite. The Committee is concerned about the lack of oversight in the making of such directions, and accordingly states: “It is essential for the purpose of accountability that the exercise of this power to issue directions is subject to judicial review in the High Court. We would welcome confirmation by the Government of our understanding that this is the case.”
More broadly, the Bill has the potential to affect civil liberties in a number of important areas: the detention or quarantining of individuals, the registration of deaths and the disposal of human remains, the closing of ports, restrictions on free assembly and the conduct of criminal trials. Each of these areas is accompanied by broad powers either on the face of the Bill or in the form of delegated law-making powers. As the Committee notes, the impact of these powers “cannot readily be assessed until they are used.” Therefore, it is “essential that the Government exercises these significant powers in a proportionate and non-discriminatory way.” The Committee draws attention to one particular power, in paragraph 5 of Schedule 7. This power effectively licenses unlimited periods of detention for those within the hospital system; just one of a broad range of powers given to health care staff or the Secretary of State, often based upon considerably reduced levels of medical certification. The Committee states that: “The Government should explain how it intends to use this power, how it will do so proportionately and how lengthy and potentially unjustified instances of detention can be challenged.” This recommendation ought, in our view, to apply more broadly to many of the powers created by the Bill. Further clarification by the Government and a full explanation of how these powers are to be used, and in due course are being used, should be a priority for the Government and for devolved administrations given equivalent authority.
The constitutional implications of all of these measures are potentially exacerbated by the particular circumstances of the Coronavirus pandemic and its practical effects. In relation to any emergency measure such as this, there are two safeguards upon which the constitution ultimate relies: parliamentary oversight and legal accountability. It is a pathology of the current crisis that the health crisis may come to impede both of these avenues of constitutional protection.
One significant risk is that broad Government powers may be exercised without oversight due to the physical restrictions that may come to restrict the operation of Parliament itself. The Delegated Powers Memorandum makes clear that it is envisaged that Parliament may be unable to sit, even as late as two years into the operation of the Bill’s provisions. Similar closures would inevitably also affect the Welsh Assembly, Scottish Parliament, and Northern Ireland Assembly. Even if the legislatures are functioning, the participation of members may be restricted at various periods, and for a long time to come. The Committee notes that the Bill makes no provision for such an eventuality. It concludes therefore that: “We will wish to consider how best to ensure that scrutiny and accountability are maintained in these exceptional circumstances.” This is clearly a challenging proposition but one which Parliament must remain alive to as the crisis deepens.
The Committee also observes that: “The constitutional propriety of these measures depends upon the continued effective operation of standard processes of administrative and judicial oversight. Parliament must ensure that such review procedures continue to function properly and make this a central consideration in its periodic reviews of the powers.” However, the issue that affects the physical sitting of Parliament is now also affecting the courts. The Bill provides powers to extend the use of audio and video technology in the running of magistrates courts (clauses 51-55). This does not extend however to the High Court. It is of course the case that judicial review proceedings operate increasingly on the basis of electronic submissions and paper-based decision-making. Nonetheless, it is imperative that, if the powers in the Bill are to be properly regulated, a properly-functioning court system remains in place with adequate resources available to citizens to challenge the excessive use of executive power. The Committee states that, since the High Court is likely to be affected by closures during the Coronavirus epidemic: “The Government and Her Majesty’s Courts and Tribunal Service should set out how it plans to ensure that all legal proceedings, including judicial review, will continue to be facilitated, even by video-link, during such disruption.” The Committee makes two further sets of recommendations. The first relates to access to the High Court, which includes possibly providing by way of regulations that there is relatively uninhibited access to the High Court and that the normal rules on adverse cost orders are relaxed. The second relates to making administrative adjustments to how legal aid is operated in relation to challenges to the exercise of powers under the Bill’s provisions. It recommends that legal aid applications in respect of such challenges be given priority and that evidentiary hurdles in connection with such applications be relaxed. On the whole, the Committee concludes: “We recommend the Government considers how the role of the High Court and the process of judicial review can be strengthened and supported in the exceptional circumstances of the coronavirus epidemic.”
The Committee recognises that the Bill is an essential measure and that it enjoys cross-party support, as does the fast-tracking process required to expedite its passage. The crisis facing citizens today is more immediate and real than the abstraction of constitutional propriety. But constitutionality is in the end the shield that guarantees liberty as well as life. It was incumbent upon the Committee, as it is upon Parliament and the courts going forward, to ensure that the response of those who govern, while of vital importance to the country’s wellbeing during the Coronavirus pandemic, remains proportionate in its reach.
Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. Jeff King is Professor of Law at University College London. They both serve as Legal Advisers to the House of Lords Constitution Committee. They have written this post in purely personal capacities.
(Suggested citation: S. Tierney and J King, ‘The Coronavirus Bill’, U.K. Const. L. Blog (24th March 2020) (available at https://ukconstitutionallaw.org/))