Covid-19 and the UK Administrative State
By Lee Marsons (University of Essex)
This blog was originally posted via the Admin Law Blog on 31 March 2020. The original can be found here. My thanks to Farrah Ahmed for the permission to cross-post. My thanks to Theodore Konstadinides and Maurice Sunkin for their comments on an earlier draft of this post.
Though lawyers normally loathe sweeping statements, it is fair to say that Covid-19 has affected virtually everything and everyone in the British state. As part of my work for the UK Administrative Justice Institute (UKAJI), I have been recording the response to the virus particularly from an administrative and public law perspective. In a little under a week, I have recorded over 150 incidents of administrative action connected to Covid-19, including the publication of guidance, policy, practice directions, advice, amendments, instructions, orders, postponements, and regulations. These entries can be found here. This is in addition to the behemoth parliamentary action in the form of the Coronavirus Act 2020, which will significantly expand and modify a variety of executive powers and duties. Rather than analyse the ‘correctness’ of any of these measures, which I would find impossible in the anxious immediacy and constancy of the pandemic, this post will instead highlight important features of the British response to Covid-19 connected to administrative law.
The expansion of administrative powers and suspension of administrative duties
The administrative response to Covid-19 has been vast, touching, among others, court and tribunal procedure, economic regulation, education provision, immigration enforcement, local government duties, ombud complaints-handling, and social security provision. In my UKAJI collation, there have been at least 28 statutory instruments issued by Ministers, as well as advice, policy alterations, and guidance published by virtually every public body in existence. By itself, the Coronavirus Act 2020 reaches 102 sections and 29 Schedules, and it contains some of the most significant expansions of administrative power in several generations, if not ever. The Bingham Centre for the Rule of Law has described the Act as creating the most sweeping administrative powers ever taken in peacetime. However, to my mind, it is not simply the creation of new administrative powers and penalties that is of interest, but also the mass disapplication of administrative duties found in other legislation, presumably so that authorities can focus their resources on combating the pandemic.
As far as administrative powers and duties, the 2020 Act permits the following:
- Sections 2 to 4 and Schedules 1 to 3 permit nursing and medical registrars to temporarily register new medical practitioners outside of normal training rules, so long as those registered are ‘suitably experienced’;
- Section 10 and Schedules 8 to 11 alter existing legislation on detention for mental health reasons, with the result that a detention may be ordered by a single medical practitioner if requiring the normal two would result in undesirable delay;
- Section 15 and Schedule 12 disapply ordinary statutory duties on local authorities that require them to provide care to children, the disabled, and the elderly;
- Section 25 permits Ministers to require information from persons involved in the food supply chain. Section 28 gives Ministers the power to impose a financial penalty on the balance of probabilities if they believe that the person has without reasonable excuse provided that information;
- Sections 37-38 and Schedules 16, 17, and 18 give Ministers the power to issue directions on the closure of educational and childcare facilities;
- Section 50 and Schedule 20 give Ministers the power to issue directions on the closure of any port, which also creates an offence for failure to comply with the direction;
- Sections 51 and Schedule 21 give public health officers, constables, and immigration officials the power to direct a person to report to a coronavirus assessment and screening centre, while creating an offence for failure to comply with the direction;
- Section 52 and Schedule 22 give Ministers the power to issue directions as to public movement, gatherings, premises, and events, while creating an offence for failure to comply with those directions; and
- Section 76 grants the Treasury the power to direct HM Revenue and Customs (HMRC) to have any function related to coronavirus.
Ministers have started to exercise these powers, with the Act receiving Royal Assent on 25 March. Nevertheless, the Act is broadly inoperable thus far. The Coronavirus Act 2020 (Commencement No. 1) Regulations 2020 brought into force Schedule 13 of the Act which amends how deaths may be officially registered in England and Wales, and sections 19 and 21 of the Act which alter the requirement for confirmatory medical certificates for cremations in England, Wales, and Northern Ireland. In addition, the Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 brought into force s.10 on the modification of mental health and mental capacity legislation in Wales, along with Schedule 8 on proceedings of the mental health review tribunal in Wales. The Regulations also bring into force on 1 April s.15 which deals with the powers and duties of local authorities in Wales. The most substantial use thus far, however, has been by Scottish and Northern Irish Ministers, who issued the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and the Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020, which, inter alia, order the closure of most businesses alongside imposing conditions on public movement and gatherings, with offences created to enforce the restrictions.
Home detention and business closure through ministerial directive
One of the remarkable features of the current response is that the most significant interferences with normal liberty – such as carrying on a business, leaving the house, and gathering in public – are being achieved by delegated legislation issued by the executive. As I noted here along with Theodore Konstadinides, thus far the vast majority of this delegated legislation has been issued without having been laid before Parliament for approval, due to reasons of urgency (though will have to be laid within 28 days). The most significant orders include the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and the Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020. As I will make clearer, there are important differences between these Regulations – including the enabling power used and the imposed restrictions – but for now I will concentrate on broad similarities. Each regulation gives Ministers the power to declare an ‘emergency period’, starting when the regulations come into force. A Minister must review the need for restrictions every 21 days and the regulations expire after six months. In addition, there is a duty on the Minister to terminate a restriction if they no longer believe it to be necessary.
In terms of restrictions, the regulations impose closures on, inter alia, restaurants, cafes, bars, pubs, cinemas, betting shops, casinos, spas, salons, gyms, playgrounds, and outdoor markets (except food stalls). The regulations also impose conditions on freedom of movement and assembly. Each regulation declares, in language that feels peculiar to read in peacetime:
‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’
A reasonable excuse includes, among others, obtaining household necessities, taking exercise, seeking medical assistance, attending a funeral, donating blood, avoiding injury or harm, caring for the vulnerable (defined as a person over 70, a person with a listed underlying health condition, or a pregnant woman), and to attend work where it is not reasonably possible to work from home. In addition, public gatherings of more than two people are prohibited, except for a finite number of reasons, including that the people are members of the same household, participating in lawful work, or fulfilling a legal obligation.
These restrictions are enforced by constables, police community support officers, designated local authority officers, or any other person designated by Ministers. These officials may issue a ‘prohibition notice’ to any person they reasonably believe is violating a restriction, if it is necessary and proportionate to prevent a person from violating that restriction. It is an offence, without reasonable excuse, to contravene a prohibition notice. Officials may also direct a person to return home, direct the dispersal of a gathering, or use reasonable force to require these things. Officials may further direct an adult responsible for a child to secure a child’s compliance with the restrictions if a child is repeatedly failing to comply. Contraventions may be punished by officials through ‘fixed penalty notices’, that is, financial penalties of £60 for a first contravention (or £30 if it is paid within fourteen days), £120 for a second contravention, up to a maximum of £960 for subsequent contraventions. No prosecution may be brought before twenty-eight days have passed since the imposition of the penalty and no prosecution at all may be commenced if a person has paid their liabilities under the notice.
One curious feature to emerge among the UK’s constituent nations is the slightly different restrictions imposed by the individual regulations. In Wales, Regulation 8 expressly limits exercise to no more than once a day. In the English equivalent, there is no such limitation, nor in the Scottish or Northern Irish equivalents. Moreover, Regulation 4 of the Scottish Regulations and Regulation 6 of the Welsh Regulations require any business which is permitted to be open to take reasonable measures to ensure that persons maintain a distance of two metres while in the premises. There is no such requirement in the English or Northern Irish equivalents.
The vires of the Regulations
Another notable feature is that both the English and Welsh Regulations were issued under s.45C of the Public Health (Control of Disease) Act 1984, which enables Ministers to impose, inter alia, ‘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(3)(c). These may be provisions that are general, contingent, or specific in nature (s.45C(2)(b)) and s.45F makes clear that Ministers may create offences, confer functions on any person, and provide for the enforcement of restrictions. Despite this apparent breadth, in a fascinating blog, Lord Anderson – the former Independent Reviewer of Counter-Terrorism Legislation – has highlighted a plausible vires concern. This is that s.45C(4) declares that restrictions may include in particular:
(a) a requirement that a child is to be kept away from school;
(b) a prohibition or restriction relating to the holding of an event or gathering;
(c) a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains; and
(d) a special restriction or requirement.
A special restriction or requirement in (d) is one that can only be applied by a magistrate under s.45G(2). Anderson’s argument is that while the words in particular mean that the list is not exhaustive, any restriction imposed must nevertheless be eiusdem generis (of the same nature) as those in the list. The difficulty is that the listed examples more naturally refer to individual persons, not the entire country at large. Therefore, as Anderson notes: ‘An ultra vires challenge would attract strong arguments in both directions.’
By contrast, the Northern Irish and Scottish regulations were made under Schedules 18 and 19 of the Coronavirus Act 2020 respectively, which empower Northern Irish and Scottish Ministers to achieve the same in virtually identical language. This difference in enabling power is because the 1984 Act, by virtue of s.79, does not extend to Scotland or Northern Ireland. But I do not foresee any different vires issue arising from the use of different statutory frameworks. Not only is the language identical in the empowering provisions, but the subsequent provisions imposing conditions on those powers are also near identical, albeit modified to fit context. Section 45D(1) of the 1984 Act reads:
Regulations under section 45C may not include provision imposing a restriction or requirement…unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
And paragraph 2(1) in, for example, Schedule 19 of the 2020 Act reads:
Regulations under paragraph 1(1) may not include provision imposing a restriction or requirement…unless the Scottish Ministers consider, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
Given the particular impact of Covid-19 on the elderly and medically vulnerable; the consistent global action comparable to the UK’s; the lethality and infectivity being higher than standard influenza; the novel nature of the disease; the lack of judicial medical expertise; the importance of early and rapid containment; the lack of a vaccine; the possibility of a second winter peak in 2020; the fact that government policy appears simply to be following its medical officers; and evidence that the initial distancing advice was not being followed to a maximal degree, in my view suggests that, on a judicial review, these measures would be regarded as well within proportionate use of the powers.
Discouraging misbehaviour and zealous enforcement
One interesting, potentially problematic feature of the administrative response has been the eliding of the subtle – but crucial – distinction between government advice and the actual rules imposed by the Regulations. Naturally, ministerial advice as to social distancing and isolation is not replicated verbatim in the delegated legislation. This has led to debates about the legitimate role of the police in discouraging irresponsible behaviour, even when no specific rule prohibits that behaviour. One example that has rapidly become infamous is that of Derbyshire Police, who used a drone to record and publish footage of several people taking exercise in the Peak District. Derbyshire considered that it was ‘not appropriate to be getting in your car and travelling to take this exercise, particularly to a location, such as the Peak District that in normal times can become busy.’
Another concern that may proliferate is the seemingly zealous, legalistic, and literalistic enforcement of the Regulations by some officials. Section 6(2)(a) of the English Regulations, for instance, limit shopping trips to ones that ‘obtain basic necessities…and supplies for the essential upkeep, maintenance and functioning of the household…’ Because of this, one officer fined a customer in a supermarket £30 due to the customer having a birthday card alongside necessities in their shopping basket.
An inconclusive conclusion
The coronavirus pandemic is expected to peak in the UK between late April and early June of 2020. Therefore, the country is either at an early- or mid- stage in its response to the virus. Even if, on an irrationally optimistic assessment, a vaccine is produced, approved, and funded globally and imminently, the administrative situation is nevertheless changing daily – perhaps more frequently than that. Consequently, while this piece provides a brief overview of the situation at the time of writing, I am left with the inevitable unease that, even within a few hours, this information may be out of date. Such are the precarious, extraordinary times we are in.
Lee Marsons is a GTA in public law and PhD candidate at the University of Essex. Follow him on Twitter at @LeeGTMarsons. He can be contacted on firstname.lastname@example.org.
Pingback: Relaunch: UKAJI call for blogs and opinions on Covid-19 and administrative justice | UKAJI - November 4, 2020
Pingback: Judicial review and Covid-19: reflections on the role of crowdfunding | UKAJI - June 5, 2020
Pingback: COVID-19 and administrative justice – a call for blogs, opinions, and news | UKAJI - June 4, 2020
Pingback: UKAJI March and April 2020 round-up | UKAJI - May 1, 2020
Pingback: The Emperor has no clothes: A sober analysis of the Government response to Covid-19 | UKAJI - April 28, 2020
Pingback: Jumping in with both feet? | UKAJI - April 17, 2020