Public health emergency powers and the rule of law

This summer the UK Covid-19 Inquiry is expected to publish an interim report on its first area of work, the UK’s resilience and preparedness. Recently, the Scottish Covid-19 Inquiry concluded eight months of hearings on the health and social care impacts of the pandemic. Both inquiries continue to gather evidence and conduct investigations, and have significantly more ground to cover before they publish their final reports.

To complement and inform the inquiries’ ongoing investigations and government planning for future emergencies, we have spent the last 15 months working alongside leading figures within law, public health, governance and public policy as part of an Independent Commission on UK Public Health Emergency Powers. The Commission, supported by the Bingham Centre for the Rule of Law, has conducted an intensive review of the constitutional and rule of law dimensions of the UK’s Covid-19 response, which the two public inquiries are not focussing upon. Its research and evidence encompassed the legislative structures and experience in the UK and ten other countries. Last month it published its report, which makes 44 recommendations for change spanning the design of legislation, the enhancement of parliamentary procedures, the improvement of legal certainty, and the facilitation of appropriate enforcement action.

One of the major debates in legal circles during the Covid-19 pandemic concerned the suitability of the Public Health (Control of Disease) Act 1984 (PHA) as compared to the Civil Contingencies Act 2004 (CCA). The PHA formed the basis of much of the Covid-19 response throughout the UK (the PHA applies in England and Wales, and was the template for near-identical powers temporarily imported into public health law in Northern Ireland and Scotland) but some commentators, including a former Supreme Court judge, argued that it would have been preferable for the CCA to have been used, largely because it mandates stronger parliamentary oversight over government law-making. However, the Commission’s report concludes that the CCA would not be a suitable legislative tool for responding to most public health emergencies.

Instead, the Commission proposes enhancing the parliamentary oversight mechanisms within the PHA and equivalent provisions in the Public Health etc. (Scotland) Act 2008, which the report suggests should be the template for emergency public health legislation across the UK once amended. One of the Commission’s key proposed amendments is restricting use of urgent government law-making without prior parliamentary scrutiny to circumstances when a declaration of an ‘urgent health situation’ is in effect. The Chief Medical Officer’s advice should be provided to the legislature, which must vote to approve (or reject) the declaration. The declaration should be subject to a two-month sunset period that can only be renewed with parliamentary approval.

The Commission’s recommended changes to parliamentary procedures include the establishment of a specialist emergency committee during a public health emergency, similar to the Scottish Parliament’s Covid-19 Committee. This could provide a forum for parliamentarians to feed into even extremely fast-moving emergency law-making by government when there is no time to seek advance approval from the full legislature.

A recurring problem during the Covid-19 pandemic was the lack of clarity in the drafting and communication of coronavirus laws. Almost a third of the Commission’s recommendations relate to legal certainty. Its proposals include ensuring emergency public health laws are simplified, kept to a manageable number, clearly titled, regularly consolidated, published before coming into force, and linked to the underlying public health rationale. The report also makes recommendations as to how governments can best communicate emergency public health laws, including how clearly to distinguish legal restrictions from public health advice.

As to the enforcement of public health restrictions, the Commission notes that criminal enforcement should not be assumed to be the default position. It recommends that the necessity of enforcement should be monitored over the course of an emergency. It is particularly concerned with ensuring police officers are given appropriate training and information if they are to enforce public health restrictions in the future, and that sanctions imposed for breaching public health restrictions should be appropriate and can be fairly appealed.

The Right Hon. Sir Jack Beatson FBA was Chair of the Commission and Katie Lines was the Research Leader at the Bingham Centre for the Rule of Law, who conducted research, advised Commissioners and led on drafting the Commission’s final report.

The vital work of the Independent Commission was generously supported by the JRSST Charitable Trust, alongside other funders.