Following the most recent Government advice, we are all being asked to radically reduce social contact in our work and personal lives. But to succeed in our battle against this virus, our continuing commitment to civic order and a sound, effective justice system is an essential tool.
So what does law in a time of Corona look like?
The Government already has significant legal powers to address emergencies under the Civil Contingencies Act 2004 (CCA 2004). The definition of an emergency triggering use of powers would include the outbreak of an infectious disease as an event or situation which threatens serious damage to human welfare in a place in the UK. Regulations can be made under the CCA 2004, breach of which can result in imprisonment for up to three months.
In an emergency situation, Ministers can issue urgent directions with immediate effect in lieu of drafting secondary legislation. However Ministerial Directions lapse after 21 days. The CCA powers then are as you would expect – for emergency contingencies of transient nature – and thus not ideally suited for the long term nature of the current challenge.
The Public Health (Control of Disease) Act 1984 already enables Courts to make orders to sequester people if they are believed to be infected with a disease. Indeed, on 10 February 2020, using the powers under this Act, the Government enacted the Health Protection (Coronavirus) Regulations 2020 which give more specific powers to order ‘health measures’ which include screening, assessment and detention restrictions – provided they are in response to “a serious and imminent threat to public health”.
However, such orders cannot extend beyond a maximum 56 day period. Breach of the provisions is a criminal offence, but offenders are liable only to a fine as opposed to custody. In practical terms, whilst a significant tool, the penalties for breach are not severe, and enforcement of any such breaches may prove difficult in a court system already under strain.
It is likely then that the Emergency Coronavirus Bill to be considered this week, would seek to entrench specific emergency powers with significant penalties to cope with the current restrictions envisaged i.e. restrictions of 12 weeks as opposed to just 56 days. Our much publicised panic buying of toilet roll will of course not have inspired confidence in our legislators.
It is of course possible, although one would hope unlikely, that in the event of widespread infection and disorder, the UK Government could introduce sweeping powers of summary detention. However, in order to do this it would have to derogate from the right to liberty under Article 5 of the European Convention on Human Rights (as indeed was done following 9/11). However, this can only be done on the basis that the life of the nation is threatened – we are thankfully a long way from this – but we also have a role to play in ensuring this does not happen. How?
With calm commitment to our civic order we can make the enactment of severe measures unnecessary. With calm commitment to the rule of law in the time of coronavirus, love and life will go on.
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