Michael Clancy, Director of Law Reform at the Law Society of Scotland, explores legislative responses to the pandemic in each UK jurisdiction as well as in the EU. He also details the work of the Society in response to the crisis.

The coronavirus crisis has provoked an extraordinary response in almost every sector of the UK’s national life. The virulent nature of the disease, its often tragic personal consequences for those who contract it and their families and the continued and future threat it poses to public health have required a total mobilisation of medical, virological and epidemiological resources. The impact on the global economy is extraordinary and will be extensive and long lasting. The legal sector is not immune and legislatures in almost every jurisdiction have been employed to enact laws which are designed to manage, curb and control the disease by restricting movement, group activity and many facets of life which only a few months ago were looked upon as inalienable rights. This effort is, of course, a global one but this article is restricted to the legal situation in the UK.

Between 26 and 28 March, UK governments responded to medical evidence and advice that lockdowns must be imposed and enforced in order to save lives, prevent the National Health Service from being overwhelmed and constrain the spread of Coronavirus and began a legislative effort which continues to this day.

Acting under powers contained in the Public Health (Control of Disease) Act 1984, the UK Health Secretary made the Health Protection (Coronavirus Restrictions) (England) Regulations 2020.

This was followed by the Welsh Government, which enacted the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020.

In Northern Ireland, the Executive Department of Health, using powers under the Public Health Act (Northern Ireland) 1967 enacted the the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland).

In Scotland the position was similar, the Scottish Government, acting under powers in the Coronavirus Act 2020, enacted the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020.

Guidance has been published by all four Governments on how to protect one another from the virus (including vulnerable people and those who are shielded), maintain health and deal with employment, financial and work issues. The Guidance also covers topics such as business matters, education, schooling, housing, transport, travel and immigration, healthcare workers, volunteering and support when there is a death. The Guidance and the law are not the same in each part of the UK and care must be taken to ensure that the regulations applicable to whichever part of the UK are being followed, as a breach may result in legally enforceable penalties.

 

Primary Legislation

The principal relevant UK primary legislation is the Coronavirus Act 2020 (2020 c. 7). This Act contains 102 sections and 29 schedules and was considered at pace in Parliament. It had all its stages – Second Reading (debate of the principle of the bill), Committee (amending stage) and Third Reading – in the House of Commons on 23 March, all its stages in the House of Lords over 24 and 25 March and became law on 25 March. In other circumstances the Law Society of Scotland would have highlighted the need to scrutinise the legislation carefully and not to sacrifice that scrutiny for speed. However, the nature of Covid-19 and the serious and imminent threat it poses to the community at large are potentially so devastating that it was right that Parliament’s response matched the level of threat. The shortened time for scrutiny means that there should be thorough review of how the legislation is working in practice and each legislature in the UK will need mechanisms to ensure that scrutiny will take place in a searching and comprehensive manner whilst recognising the need to keep people safe in the scrutiny system.

 

Subordinate Legislation

There is a considerable amount of subordinate legislation under the Coronavirus Act 2020 — 75 UK statutory instruments (regulations), 17 Scottish Statutory Instruments, 30 Northern Ireland Statutory Rules and 17 Wales Statutory Instruments at the time of writing. With so much subordinate legislation (and the potential for more) covering so many areas of the law, how can Parliament ensure a co-ordinated approach to scrutiny and, more importantly, that there are no gaps in legislation that may be needed to deal with the consequences of this illness?

 

Scrutiny Proposals

The Law Society of Scotland have suggested a Joint Coronavirus Committee to coordinate detailed scrutiny of Government through the pandemic in much the same way as the Joint Committee on Human Rights deals with human rights issues and the Covid-19 Committee in the Scottish Parliament deals with Coronavirus issues. The Law Society of Scotland also suggested a quadripartite parliamentary group, bringing together all the UK legislatures to share experience , best practice and knowledge about legislating in the pandemic, using as a model the Inter-Parliamentary Group formed to consider Brexit.

 

The Act does makes provision for Parliamentary scrutiny

Section 97 of the UK Coronavirus Act 2020 provides for a report to be made by the Secretary of State every two months on the status of non-devolved provisions of the Act. The first reporting period ends on 25 May. The report as to whether the status of certain non-devolved provisions continue to be appropriate relates to whether the provisions have been brought into force, have been suspended or revived or if an expiry date has been fixed.

Section 99 applies where the Act substantively operates for more than a year from 25 March. Under this section, a Minister of the Crown must make arrangements for a motion in neutral terms to be moved in the House of Commons to the effect that the House has considered the one-year status report, to be moved in that House. A motion to take note of the report should also be moved in the House of Lords.

 

 

Scottish Legislation

The Coronavirus (Scotland) Act 2020 (asp 7), which is the principal relevant Scottish legislation, contains many provisions of importance to life in Scotland, including law relating to children and vulnerable adults, justice matters, public bodies and a number of other areas. That Act contains provisions requiring Scottish Ministers to report on the necessity of such legislation rather than, as in England and Wales, the appropriateness of the status of the legislation.

The Scottish Parliament also passed the Coronavirus (Scotland) (No.2) Act 2020. The Act will help public services operate during the coronavirus pandemic and support businesses and individuals. The Act includes provisions to ensure business and public services can operate, change public service duties, provide protections for student tenants and support for carers and make changes to criminal procedure. It also allows Scottish notaries public to execute documents by video technology.

The Act contains a number of safeguards, including expiry of the legislation on 30 September 2020. The legislation can be extended until 30 September 2021. Scottish Ministers must review and report on the measures every 2 months.

 

EU Coronavirus Legislation

The EU Institutions have also been active on the law-making front as a result of the Coronavirus.

There have been 13 Regulations and six Decisions originating from the EU which deal with Coronavirus issues. These include Regulations on temporary support to mitigate employment risks (Council Regulation EU 2020/672), addressing market disturbance in the fruit, vegetable and wine sectors (Commission Implementing regulation EU 2020/600), on the fishery and aquaculture sector (Regulation EU 2020/560) and on flexibility for the use of European Structure and Investment funds (Regulation EU 2020/558).

There are also eight Decisions including the mobilisation of the Contingency Margin to provide emergency assistance to Member States (Decision EU 2020/547) and to finance immediate budgetary measures (Decision EU 2020/546 and Decision EU 2020/545). An important Commission Decision relates to the relief from import duties and VAT exemption on importation of goods needed to combat the effects of Covid-19 (Commission Decision EU 2020/491).



The Law Society of Scotland’s Response to the Crisis

The Law Society of Scotland has been working hard on keeping solicitors up to date with advice since the Coronavirus crisis emerged. We have been publishing regular updates to support the profession which can be found here. These cover issues such as AML certification, legal aid, civil and criminal court issues, non-face-to-face client identification, police guidance, guidance on conveyancing and property, wills and powers of attorney and guidance from HMRC on tax and VAT. We have also conducted a survey on the impact of the virus on solicitors’ firms which can be found here.

In relation to the legislation, we considered a number of broad themes which set the context for our comments on the Act. They are Parliamentary scrutiny and the rule of law, respect for human rights, devolution and other public health legislation. We also tried to ensure in our analysis of proposals that the overriding principle was keeping people safe in the Scottish legal system. This article focuses on the first two themes:

 

A. Parliamentary Scrutiny and Rule of Law

Common provisions of Coronavirus legislation fall within two broad categories:

(i) Broad regulation-making powers to suspend, modify or grant indemnity from existing statutory laws or common law and powers to suspend or revive other provisions of the legislation including to amend provisions of the Acts themselves (e.g. Section 88 in the Coronavirus Act 2020 and Section 11 in the Coronavirus (Scotland) Act 2020).

(ii) Those which confer new powers (e.g. the powers in Schedule 21, Part 3) in order to deal with the coronavirus pandemic.

Parliamentary scrutiny of the Coronavirus Bill was very limited. The short timetable for scrutiny of the UK Act has already been mentioned. Similarly, the Coronavirus (Scotland) Act 2020 passed all its stages in the Scottish Parliament on 1 April. In other circumstances many of the provisions in these bills would have been regarded as unacceptable, but the Society took the view that this approach was justified by reference to the emergency.

In our view, the ordinary rules of judicial review will apply to regulations made under the Coronavirus legislation.

 

B. Respect for Human Rights

We welcomed the publication along with the UK bill of the Human Rights Memorandum from the Department for Health and Social Care, which dealt comprehensively with European Convention on Human Rights (ECHR) compliance. Similar respect for human rights was shown in the Explanatory Memorandum which accompanied the Scottish bill. Where the legislation engages the ECHR, the rights engaged are qualified – not absolute – and their exercise in current circumstances is to be balanced with the wider interests of public safety and the protection of individual and community health.

The Human Rights Act 1998 applies to the acts of public authorities under the Bill and we encourage public authorities which undertake coronavirus functions to ensure compliance with Convention rights. We expect that human rights and the rule of law will be fully respected when applying the provisions of the Coronavirus legislation.

 

Michael Clancy, Director of Law Reform at the Law Society of Scotland