UKCLA Human rights, Scotland, UK government, UK Parliament, United Kingdom, Wales

Jeff King: The Lockdown is Lawful

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8) both provide in identical wording that  ‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’ Both also enumerate thirteen exceptions (‘reasonable excuses’) to the rule.  These are the restrictions widely referred to as the ‘lockdown.’  There is a question at the moment about whether they are so invasive as to be unlawful.  This two-part post briefly reviews the legal basis for the confinement. I argue that the lockdown is lawful.

The Statutory Framework

The recently adopted Coronavirus Act 2020 does not confer new powers on UK and Welsh ministers to impose a lockdown on the people of England and Wales. It does confer such powers on Northern Ireland (specifically, the Northern Ireland Department of Health) in Schedule 18; and on Scottish ministers in Schedule 19.  Neither Northern Ireland nor Scotland had them previously.  The scheme in those two schedules is roughly – and in the case of Northern Ireland almost verbatim – based on the powers accorded to UK and Welsh ministers under the Public Health (Control of Disease) Act 1984.    It is there that the source of the powers both now and into the future are to be located in respect of any lockdown.  If the present lockdown is found to be outwith the 1984 Act, it would follow that no lockdown is presently permissible anywhere in the country.

The 1984 Act may seem a bit old as a framework of powers for dealing with a pandemic like Covid-19. But, in fact, the relevant part of the 1984 Act (Part 2A) was inserted by Part III of the Health and Social Care Act 2008.  That later Act was designed with epidemics in mind, as it was a response to the SARS epidemic of 2003. It does two main things. First, it empowers the Secretary of State to make regulations to respond to the protection of health in response to the spread of infectious disease (ss. 45B-45F).  Second, it provides a framework for the exercise of powers by Justices of the Peace to make health protection orders against particular individuals or groups of individuals (ss.45G-O). Essentially, when the Government wants to make a broader set of rules and regulations applying to all or some significant part of the population it uses the powers under ss.45B and following; and when some public authority wants to impose restrictions on a specific person or group of persons it applies to a Justice of the Peace under ss.45G and following.

The Lockdown Provisions

In the lockdown regulations cited in the introduction above, the Government has clarified that it is acting under section 45C of the 1984 Act.   I will reproduce some of the relevant provisions that are on point (with emphasis added in some places):

  • s.45C(1): ‘The appropriate Minister may 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(2): ‘The power in subsection (1) may be exercised—

(a) in relation to infection or contamination generally or in relation to particular forms of infection or contamination, and

(b) so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances.’

  • s.45C(3)(c): ‘Regulations under subsection (1) may in particular include provision… imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.’
  • s.45C(4)(d): ‘The restrictions or requirements mentioned in subsection (3)(c) include in particular…a special restriction or requirement.’

The regulations also specify on their face that they are imposing a special restriction or requirement under s.45C(4)(d).  So, what are those, exactly? 

The 1984 Act is somewhat intricate here.  They are to be defined for the purposes of section 45C(4)(d) by reference to those things that Justices of the Peace are empowered to deal with in respect of persons, things and premises in sections 45G-O (see section 45C(6)(a) – subject to certain exceptions which I come to further below).    Under those provisions, if a constable or public health officer wanted to act against an individual or group of persons that were at risk of spreading infectious disease, s/he would apply to a Justice of the Peace to issue an order in respect of those persons.  Any such order would be appealable to the Magistrates’ Court.  The powers in section 45C, by contrast, are for the Secretary of State to deal with more significant public health threats for which individual applications are manifestly ill-suited, presumably by reason of the numbers at issue.  So the answer to what a ‘special restriction or requirement’ is, is provided by section 45C(6)(a). 

We don’t need to get any further lost in the weeds here. It is unfortunate that while the regulations themselves do not specify precisely which ‘special restriction’ provision they are using.  In my view the most relevant provision granting powers to impose a ‘special restriction or requirement’ is

  • s. 45G(2)(j): ‘The order may impose on or in relation to [a person] one or more of the following restrictions or requirements— […]that [a person] be subject to restrictions on where [a person] goes or with whom [a person] has contact.’ 
  • s. 45J confirms explicitly that ‘a person’ also includes ‘groups of persons.’

All told, it seems reasonably clear to me that the words of the 1984 Act can be construed literally to confer powers to impose the lockdown.  Section 45C empowers to act in response to ‘infection or contamination generally,’ that it is to ‘make provision generally’ and the restrictions against persons relating to movement and gathering is provided for explicitly.  Moreover, the entire point of the regulation making powers is to enable the Government to respond to problems for which individual applications to Justices of the Peace are unsuited. 

More than (general) words can say?

But should the literal words be read down?  The common law’s love of liberty has often and rightly suggested doing so.  As the noted jurist and peer, Lord Anderson, has put the challenge on his blog, ‘[f]or such a remarkable limitation of personal freedom to be contemplated by statute, one would have expected to find clear words in section 45G(2): something like “that P be required not to leave the place where P is living, save for specified purposes.”  That might seem apiece with the idea behind the principle of legality and many other public law cases which are apt to deny that general rather than specific words can permit serious infringements of personal liberty.  Relatedly, was it the gist of the Act to deal with something much more limited than a health scare that precipitates a nation-wide lockdown?

In my view, both these questions can be answered by considering the purpose of the 2008 amendments of the 1984 Act.  While Pepper v Hart [1992] UKHL 3 often makes judges cringe these days, there’s no reason for legal scholars or the public to be indifferent to what those presenting and pushing the Health and Social Care Bill have had to say about it.  At his second reading speech of the Health and Social Care Bill (Lord Darzi of Denham) (HL Debates, Vol. 700, Col. 452 (28 March 2008)), the general point of the 2008 amendments was clarified:

In relation to Part 3 of the Bill, the Public Health (Control of Disease) Act 1984 consolidates earlier legislation, much of it dating from the 19th century. Not surprisingly, many of its assumptions, both about risks and about how society operates, are now out of date. It provides for only a limited range of actions when other measures could be more effective in terms of protecting public health, and more convenient and less intrusive for those concerned. […]

[T]he new legislation contained in Part 3 will provide for a comprehensive set of public health measures to help prevent and control the spread of disease caused by infection or contamination which present, or could present, significant harm to human health. This will enable a quick response to new or unknown diseases or threats, such as the ones we have seen in recent times, for example SARS or Polonium 210. Some of the measures proposed could impact on an individual’s human rights. That is why we have provided significant safeguards in the legislation to protect individuals. Human rights require a balance to be struck between the freedom of the individual and the health and safety of other people; we are confident that we have struck the right balance.​

The statement doesn’t settle the interpretive issue (precisely why judges often cringe).  But the idea that the 2008 Act provides an updated framework for dealing with ‘new or unknown diseases’ such as SARS is directly on point, as is the recognition that this could lead to incursions into individual liberties. It is in the very nature of new or unknown pandemic diseases that makes complete parliamentary foresight almost impossible to achieve, and a reaction time to them needs to be rapid in order to avert disaster. The fact that the WHO has strenuously advised social distancing, and that internationally speaking, lockdowns have been regarded by a critical mass of Governments and public health experts alike as the only way to make effective that recommendation, also suggests that it is a reasonable interpretation of the Part 2A powers under the 1984 Act.  If so much of the world could come quickly to the view that a lockdown was the only, inevitable and indeed proportionate response to this ‘new or unknown disease or threat,’ it is not unreasonable to read a SARS-responsive piece of legislation as catering for that kind of situation. That was presumably the Government’s position when it did nothing to amend the Coronavirus Bill to confer explicit lockdown powers during the three days of legislative scrutiny that followed its announcement of the lockdown on Sunday, 22 March 2020.

Jeff King is a Professor of Law, University College London and a Legal Adviser to the House of Lords Constitution Committee. 

The opinion in is written in a purely personal capacity. The author thanks Alison Young and Daniel Greenberg for comments (and offers his apologies for omitting a careful discussion of the Civil Contingencies Act 2004).  Part II will address whether the lockdown may be regarded as a quarantine and whether it is a proportionate response and is compatible with human rights.

(Suggested citation: J King, ‘The Lockdown is Lawful’ UK Constitutional Law Blog U.K. Const. L. Blog (1 April 2020) (available at: https://ukconstitutionallaw.org/))