The increased number of UK COVID-19 cases [1] has updated national lockdown measures and created new laws to protect the well-being of the population [2]. Nonetheless, it creates a dangerous legal precedent when the government uses COVID-19 as an excuse for furthering its powers. The Coronavirus Act 2020 has expanded emergency powers [3]. Lord Sumption has argued that the government is taking absolute control over the personal lives of citizens which he considers to be almost totalitarian [4]. Consequently, it indicates a constitutional crisis based on the following grounds [5].
Firstly, it is important to highlight the quasi-democracy involved in the process of law-making [6]. The Civil Contingencies Act 2004 provides a single framework for civil protection and complies with constitutional obligations in the state of emergency. This has to be operated to impose urgent regulations [7]. The emergency powers must comply with the Human Rights Act 1998 [8], and it must be under serious parliamentary scrutiny [9]. However, during the current pandemic, the government has used provisions under the Public Health (Control of Disease) Act 1984 to impose the ‘stay at home’ order with no required stages of drafting [10] (besides consideration of its reasoning and necessity by each House of Parliament) [11]. It means that the serious check is no longer needed, especially if the governing party has a majority in Parliament [12]. Nevertheless, such powers last only 28 days, but might be extended by Parliament’s resolution [13].
This highlights another problem: the absence of serious parliamentary scrutiny. Even if the statutory instrument did not pass the debate, a minister or a relevant authority could directly order emergency restrictions to be imposed without a debate in Parliament [14]. Furthermore, such powers technically do not have an ‘expiry date’ [15]. Although executive powers under the Act expire after two years, they might be extended due to the necessity to ‘defeat’ the pandemic completely [16]. The Act requires Parliament to review temporary regulations every six months to suspend any unnecessary measures, but this review could be superseded on the grounds that it is uncertain how much longer this pandemic will continue for [17].
A similar situation is being debated currently. The Covert Human Intelligence Sources (Criminal Conduct) Bill [18], if passed, would authorise the use of murder and torture by undercover agents and public authorities; it would essentially legalise criminal actions without any recourse from the courts [19]. This too will have serious consequences for the powers Parliament believes it can dispense and thus has the potential to increase the unchecked powers of the executive [20].
The government is using an authoritarian approach to ensure absolute public health and safety. The executive has gained powers which remain unchecked, using the pandemic as an excuse to do so [21].
Public Health England, ‘Coronavirus (COVID-19) in the UK’ (Public Health England, 8 November 2020) <https://coronavirus.data.gov.uk > accessed 8 November 2020.
The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020, SI 2020/1200, reg 5(1).
Maximillian Shreeve-McGiffen, ‘The Coronavirus Act 2020: Unprecedented Powers, But Are They Necessary?’ (The Oxford University Undergraduate Law Journal, 7 May 2020) <https://www.law.ox.ac.uk/ouulj/blog/2020/05/coronavirus-act-2020-unprecedented-powers-are-they-necessary> accessed 12 October 2020.
Lord Sumption, ‘Cambridge Freshfields Annual Law Lecture – Government by decree: Covid-19 and the Constitution’ (Cambridge Private Law Centre, 27 October 2020) <https://resources.law.cam.ac.uk/privatelaw/Freshfields_Lecture_2020_Government_by_Decree.pdf> accessed 28 October 2020.
Xenophon Contiades, Constitutions in the Global Financial Crisis (Routledge 2013) 53.
Plamen Georgiev, Corruptive Patterns of Patronage in South East Europe (VS Verlag für Sozialwissenschaften 2009) 131.
Civil Contingencies Act 2004, s 20(1).
Ibid. s 30(2).
Ibid. s 27(2).
Public Health (Control of Disease) Act 1984, s 45R(2).
Ibid. s 45R(3)(1).
Ivan Krastev, ‘New Threats to Freedom: Democracy’s “Doubles”’ (2006) 17(2) JD 52, 53.
Public Health (Control of Disease) Act 1984, s 45R(4).
Coronavirus Act 2020, Sch 22 s 8.
Ibid. s 89(1), s 90(1).
Maximillian Shreeve-McGiffen, ‘The Coronavirus Act 2020: Unprecedented Powers, But Are They Necessary?’ (The Oxford University Undergraduate Law Journal, 7 May 2020) <https://www.law.ox.ac.uk/ouulj/blog/2020/05/coronavirus-act-2020-unprecedented-powers-are-they-necessary> accessed 12 October 2020
Coronavirus Act 2020, s 98(1).
Covert Human Intelligence Sources (Criminal Conduct) HL Bill (2020-144).
Ibid. s 1.
The Guardian, ‘The Guardian View on Covert Human Intelligence Sources: Draw A Line’ (The Guardian, 11 October 2020) <https://www.theguardian.com/commentisfree/2020/oct/11/the-guardian-view-on-covert-human-intelligence-sources-draw-a-line> accessed 28 October 2020.
Mark Elliott and Robert Thomas, Public Law (4th edn, Oxford University Press 2020) 401.
