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The government needs to tell parliament how it will address problems with the lockdown laws

The government must provide greater clarity and allow for regular scrutiny on coronavirus laws

With the UK parliament voting for the first time on the laws that make up the backbone of the coronavirus lockdown, Raphael Hogarth says the government must provide greater clarity and allow for regular scrutiny.

The lockdown enjoys widespread public support, along with support from the Opposition. It is nevertheless extraordinary that the laws which give it effect – the most draconian restrictions on ordinary life in living memory – have been in force for so long without debate and approval by parliament. It is welcome that parliament is being asked to approve them now.

Public health legislation says that in cases of urgency, the government can make regulations for the protection of public health without putting them before legislators. That is what the government did five weeks ago when it passed the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which provide that no person may leave home without reasonable excuse and prohibits gatherings of more than two people.

In the spirit of constructive scrutiny, MPs now need to understand the problems with these regulations, put them to the government and get answers on how ministers intend to solve them.

As the government starts to consider how it will lift some of the restrictions, it is all the more important that the lockdown laws are properly scrutinised. Enforcement is only going to get more complex and more controversial when the rules apply differently to different groups or in different contexts. 

The government needs to put the lockdown laws on a safer legal footing

The lockdown is, to put it mildly, on shaky legal ground. Ministers can only lawfully make secondary legislation when parliament has given them the power to do so in a statute. The Public Health Act 1984, the statute under which regulations are made, does permit ministers to make regulations “of a general nature” which place restrictions on a group of persons who “may be infected” concerning where they go or with whom they have contact.

Several lawyers have questioned, however, whether that power authorises a population-wide lockdown. Unsurprisingly, it emerged last week that a legal challenge to the lockdown is in the works.

Ministers could have taken powers in the Coronavirus Act – which went before MPs the same day that Boris Johnson announced the lockdown – which more clearly authorised the lockdown. They need to explain to parliament why they didn’t, and what they are going to do now about the legal issues with the lockdown. 

The government must explain how it is improving police forces’ – and its own – understanding of the regulations

At times, both the police and the government itself have appeared confused about what the lockdown laws say. After some police forces suggested they were monitoring the purchase of “non-essential” goods in supermarkets, threatened to set up “road blocks” to check and tried to stop a family from playing in their own front garden, Downing Street had to reassure the public about what activity was allowed. It was reported over the weekend that the Crown Prosecution Service is now to review every single charge, conviction and sentence made under lockdown laws after news of wrongful convictions. This is the first time the CPS has ever reviewed every charge under a specific piece of legislation.

In truth, the government has not always appeared to understand the regulations itself. It updated its own online guidance last week to clarify that the “very limited purposes” for which it had told the public they were allowed to leave the house are not the full list. Government guidance still says that people should only take one form of exercise a day, which the law in England does not, and it goes further than the rules in several other respects.

Police forces will take their cues from the government, and if the government does not get the rules right, police forces are unlikely to do so. The government therefore needs to explain to parliament what it is doing to clarify its own guidance and make sure that police forces adopt a consistent, lawful approach to enforcement.

The government needs to tidy up arbitrary differences between the nations of the UK

These laws were passed at breakneck pace. It is not surprising that the rush left some messy law behind it.

At present, for example, the Welsh lockdown laws say that exercise should be taken once a day, but the English laws do not. If someone is prosecuted for going out, then the English and Welsh lockdown laws suggest that the prosecution has to prove that the person was out without reasonable excuse, whereas the Scottish laws suggest that it is for the defendant to prove that they had a reasonable excuse to be out. 

Unless the government can give parliament some rationale for those differences, it should work with the devolved administrations (who are legally responsible for their own lockdown laws) to remove them.

The government should provide for the regular renewal of lockdown regulations by parliament

The current lockdown regulations say that parliament only has to approve them once. After that, they stay in force either until ministers terminate them, or until September this year – whichever comes first.

Particularly now that digital voting is up-and-running in the House of Commons, the government should instead provide for regular parliamentary renewal of the lockdown. As the government considers possible routes out of the current restrictions, it should also make sure that any changes are scrutinised by parliament before being brought into force.

Sustained scrutiny would help to iron out problems. It would also ensure that the lockdown evolved in lockstep with public and democratic consent for it.

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