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The Coronavirus Bill: extraordinary legislation for extraordinary times

Given the scale of the measures in the Coronavirus Bill, constructive scrutiny of their use will be important in the coming months

The Coronavirus Bill is expected to become law within the next few days. Given the scale of the measures in the bill, constructive scrutiny of their use will be important in the coming months, argues Raphael Hogarth

The government has introduced the Coronavirus Bill at breakneck speed, and its passage through parliament is set to be just as quick thanks to a high degree of cross-party consensus on the bill.

Yet the consequences of this bill, both on public services and on the powers of the government, could be much longer lasting.

To deal with the coronavirus crisis, the bill will inevitably create other risks

The starting point for many of the provisions in this bill is that those delivering public services are going to have their hands full over the next few months. The legislation therefore lightens their load, by suspending existing legal obligations and relaxing many of the checks and balances that currently apply.

For example, existing legislation imposes many specific duties on local authorities in the field of social care, including duties to assess the needs of those who appear to require care, to involve the individual in the process, to consider their eligibility for state-funded care, to provide a care and support plan, and many more.

During the peak of the crisis, however, there will be higher demand for care services and staff will be stretched, as some will be unwell or self-isolating. The bill therefore suspends those duties, replacing them with a more general obligation to meet care needs where that is necessary to avoid a breach of someone’s human rights.

A similar story can be found in many provisions of the bill. The bill also relaxes existing legal requirements for discharging a patient from hospital, making decisions about patients with mental health conditions that mean they cannot make decisions for themselves, registering and certifying deaths and stillbirths, holding inquests, conducting cremations and managing dead bodies.

That is all understandable: the government has limited resources and has to prioritise dealing with the massive crisis it now faces. At the same time, previous parliaments attached stringent requirements to these decisions because they are so important, and the consequences are so serious when they go wrong.

For that reason, it is important that these suspensions only last so long as is necessary to respond to the pandemic. In trying to deal with that risk, we cannot avoid storing up others for the future.

The government is taking wide and robust powers to contain the spread of the virus

The provisions of the bill likely to attract most attention in the coming days are emergency powers to contain the spread of the virus.

The bill grants ministers in the UK government and the devolved administrations, along with public health officials and in some cases police officers, several powers over those they have reasonable grounds to think are infected with the virus. They include powers to test, restrict the movements of, and detain such people.

If people do not comply with directions they are given under these powers, they are committing a criminal offence.

These are extraordinary powers, but they are not unchecked. The legislation says they must be exercised only where necessary and proportionate. If ministers fail to meet those requirements, they may face legal challenges, just as Winston Churchill’s government did when exercising emergency powers taken before the second world war.[1]

There are also powers to restrict the use of premises and restrict events and gatherings, and powers for the police to enforce this using reasonable force if necessary. Of course, the fact that any of these powers have been taken does not mean that they will be used, and it certainly does not mean that they will be used often or extensively.

The implementation of this legislation needs regular, serious and constructive scrutiny

Given the scale of these measures, it is welcome that the bill itself is getting some scrutiny in parliament. If the government had used the existing Civil Contingencies Act to make emergency changes in the law, then there would have been less opportunity for parliamentarians to look at the bill and propose changes where they thought the government had gone wrong.

That said, the bill needs to pass fast and, as a result, it is not going to get all that much scrutiny on the page. It is important, therefore, that once the legislation is on the statute book, its implementation gets some scrutiny on the ground. 

There will be opportunities for that. The government will have a legal obligation to report to parliament every two months on the use of many aspects of the bill, although this is less stringent than the requirement for legislation passed under the Civil Contingencies Act, which is for parliament to renew it every 28 days. The government will also have to seek parliament’s approval for the use of some powers in the bill (albeit not the most robust powers to prevent the spread of the virus).

Parliamentarians and ministers need to take those opportunities seriously, and to ensure that the government uses the extraordinary provisions of this bill to whatever extent is necessary to deal with the crisis – but no more than that.


 

  1. [1] Liversidge v Anderson [1941] UKHL 1, www.bailii.org/uk/cases/UKHL/1941/1.html
Administration
Johnson government
Publisher
Institute for Government

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