MPs may soon be asked to extend Covid emergency powers for another six months

Safeguards in the new coronavirus restrictions were much weaker. The Government had evaded the precautions of the CCA that would have limited the power of the Prime Minister and other members of the cabinet.

The piece of legislation that opened the door for lockdowns is called The Health Protection (Control of Disease) Act 1984. It gives the authorities powers to prevent and control the spread of infectious diseases. In March 2020 new legislation (enabled mainly via the 1984 Act) was expedited through Parliament, without a debate or vote, and is called the Health Protection (Coronavirus restrictions) Regulations 2020. In response to the outbreak of SARS-CoV-2, it set the terms under which the Government could and would impose unprecedented restrictions on the entire population and comes up for parliamentary renewal biannually, next due at the end of this month.

As early as April 2nd, 2020, legal experts were questioning the odd decision of the Government to use the combined tools of the 1984 Act and fresh legislation. They noted that the Civil Contingencies Act 2004 (CCA) already existed. The CCA gives the Government emergency powers under certain conditions, however it also includes vital legal safeguards, such as parliamentary scrutiny on a regular and frequent basis. The deliberations about the proposal for the CCA in the early 2000s specifically addressed pandemics and clearly considered them to be included within the remit of the legislation. Section 19 of the CCA addresses ‘loss of human life’; ‘human illness or injury’; and ‘disruption of services relating to health’ and specific references were made when authoring the CCA to pandemic influenza.

The legal tools to deal with the pandemic, which offered both breadth, flexibility, and thorough checks and balances, were already available. Yet the Government declined to make use of the CCA. In contrast to it, the safeguards in the new coronavirus restrictions were much weaker. The Government had evaded the precautions of the CCA that would have limited the power of the Prime Minister and other members of the cabinet.

It is much more difficult, for instance, for CCA activation to linger. Emergency regulations issued under its banner only remain in force for thirty days and require parliamentary debate prior to renewal. Both Houses must assent within seven days or the proposal lapses. The Commons and Lords also have the power to annul and amend the rules and they can be cancelled by the courts if they are found to be incompatible with the European Convention on Human Rights. Whereas rules issued to enforce the lockdown restrictions only need to be asserted by Secretaries of State to be ‘appropriate’, and the House of Commons can only vote on them every six months, and even then, the power of review is greatly confined.

The pandemic response was built upon a model of emergency legislation that contradicts the wishes of an unpanicked pre-contagion parliament, and we will not be ridded of it easily. The Government which criticised the Human Rights Act in its 2019 manifesto clearly felt much more comfortable with the low-scrutiny approach. MPs should consign it to the trash. If asked, they won’t. But they should.