A group of policemen
Police during lockdown

Introduction

In response to the COVID-19 (‘coronavirus’) pandemic, the UK Parliament has passed the Coronavirus Act 2020. The swift legislative response to this issue is welcome in the interests of public health, and to protect the most vulnerable members of our society. The Act, however, involves the largest expansion of executive power seen in peacetime, and thus a careful line must be toed to ensure that our fundamental civil liberties are not permanently eroded in the face of a national crisis, but rather only suspended where necessary, and restored once the crisis period ends.  

This article aims to outline the potential challenges the Coronavirus Act 2020 poses to civil liberties, drawing particular attention to issues surrounding (a) the powers to detain ‘potentially infectious persons’ under Sch. 21; (b) the powers to prevent mass gatherings under Sch. 22; (c) mass surveillance powers under s. 23; and (d) the imposition of criminal sanctions for disease transmission. It concludes that the Coronavirus Act 2020 is unnecessary law, as the policy aims it seeks to implement could be achieved through the use of the Civil Contingencies Act 2004 and the Health and Social Care Act 2008 in a way that would allow for greater Parliamentary scrutiny, thus better preserving the system of ‘checks and balances’ in the UK constitution.

(a) Detention of ‘Potentially Infectious Persons’

First, it is argued that the Coronavirus Act 2020 powers allowing detention of ‘potentially infectious persons’ are disproportionately broad in their scope. Schedule 21 of the Act allows police, immigration officers and public health officers to detain anyone they have ‘reasonable grounds’ to suspect is ‘potentially infectious’ (para 7.(1)) for up to 14 days (para 15.(1)).  

The ability to detain anyone who ‘may be’ infectious is evidentiarily problematic, given that the coronavirus incubation period ranges from 1-14 days, most commonly around five days, and that many cases are suspected to be asymptomatic. As any member of the public “may be” infectious, at any moment, the provision could be interpreted to give police officers unlimited freedom to detain anyone, on a scale previously unseen in a liberal democracy. Fundamental habeas corpus rights against arbitrary detention and the ECHR Art 5(1) right to liberty must be respected, even in the face of a large-scale crisis. As with the Terrorism Act 2006, it is argued that where an Act allows detention without charge as a necessary measure for pursuing a national security objective, there should be clearer guidelines as to how these powers are to be exercised. This can be seen with regard to ‘control orders’, which allow the restriction of individual freedom of movement and association to prevent terrorism. Lord Hope asserted in Secretary of State for the Home Department v AF [2009] UKHL 28 that there had to be strong procedural safeguards on their use to ensure compliance with ECHR Art 5(1), stating that ‘a denunciation on grounds that are not disclosed is the stuff of nightmares…the rule of law in a democratic society does not tolerate such behavior’.

Similarly, statutory guidelines as to what constitutes ‘reasonable grounds’ for detention under the Coronavirus Act would be welcome. For example, these guidelines could require the presence of a medical professional during arrest, or state that ‘reasonable grounds’ for detention will be met if an individual does not submit to an empirically verifiable measure, such as temperature checking. The risk is that, otherwise, by equipping police officers with the power to make a decision that is a matter of medical judgment, rights may be violated due to poor and imprecise enforcement of the new law.

Furthermore, there are already powers under s. 129-130 of the Health and Social Care Act 2008 (HSCA 2008) which allow for the ‘medical examination, detention, isolation or quarantine’ of a suspected infectious person for the purposes of reducing a ‘significant risk to human health’ and even ‘requiring persons to provide information or answer questions’ related to their health under the threat of detention.  Thus, it can be questioned whether the Coronavirus Act provisions are strictly necessary. The HSCA 2008 provisions are preferable in that they crucially require the authorisation of a magistrate before allowing police officers to detain an individual.

It could be counter-argued that the urgency of protecting public health in a pandemic scenario outweighs the need for time-consuming ‘procedural fairness’ requirements. However, these two aims can be reconciled – a procedurally fair system actively contributes to the protection of public health. Without strict guidelines, the broad powers in the Coronavirus Act 2020 are liable to be misapplied – already, one of the first convictions under the new Act has been quashed, where a woman who found ‘loitering’ was charged with being ‘potentially infectious’ on no evidence. Requiring a magistrate’s authorisation not only allows an otherwise arbitrary power to be regulated, but, with limited policing resources, ensures that public health is best protected through having institutional benchmarks as to which cases are sufficiently serious to warrant police involvement. This allows scarce resources to best be deployed in situations of real need, rather than fruitlessly.

There may be delays in procuring authorisation, which could lead to some infectious persons failing to be detained, endangering of the health of individuals. However, despite this real possibility of harm, this is counter-balanced by the greater harm inflicted upon the rule of law, and the physical and mental wellbeing of individuals arrested, by widespread state coercion and indefinite detention without charge. Applying William Blackstone’s popular criminal law maxim, ‘it is better to let ten guilty persons escape than let one innocent suffer’, it is important that courts uphold the age-old presumption of innocence before the criminal law in this crisis.

Finally, although the ECHR Art. 5(1)(e) does allow restriction of the right to liberty, “for the prevention of the spreading of infectious diseases”, this must be done as a ‘last resort… because less severe measures have been considered and found to be insufficient to safeguard the public interest’ (Enhorn v Sweden [2005] E.C.H.R. 56529/00). It could be counter-argued that the Act’s measures are necessary, as less severe restrictions on the ‘right to liberty’ lead to the spread of the disease, which may prove to be perilous to more vulnerable populations, and that this would engage the absolute ‘right to life’ protected in ECHR Art. 2(1). Although this is an extremely important consideration, it is relevant that the two are not mutually exclusive; the liberties being violated are often of the most vulnerable members of society. Layla Moran, the MP for Oxford West, has highlighted that this measure could be used disproportionately against the homeless, as it is almost impossible to ‘self-isolate’ without a home or a private place to sleep.

The police mass-arresting homeless people, many with complex health and addiction issues, without proper testing, and placing them in detention centres, would not be a desirable public policy or public health outcome. The HSCA 2008 provides a solution in conferring its powers on local councils ‘in relation to the monitoring of public health risks’ (s. 129 para 45C), which could feasibly be used to provide temporary accommodation for the homeless to isolate in, such as through the use of empty hotels or student accommodation. This would both provide a framework to protect the health of vulnerable homeless people, and prevent the spread of disease through isolation, in a manner more dignified than arrest in a detention facility as proposed in the Coronavirus Act 2020.

(b) Preventing Mass Gatherings

Secondly, the Act provides measures to prevent mass gatherings, which are welcome in that social distancing is effective in reducing the spread of COVID-19, and necessary in reducing the loss of life. However, the two-year duration of the Act (s. 89) and wide scope of the provisions on ‘gatherings’ can be questioned. The Act suspends elections (s.59), and suspends the ability to recall MPs who have committed crimes (s. 62). Although these powers could potentially be necessary to maintain public health at the peak of the infection, it is possible that the ‘emergency’ scenario could end before the ‘emergency powers’ are due to – the length of the current pandemic is, by its very nature, unpredictable. It is constitutionally undesirable to lose basic accountability measures for any longer than necessary, or for them to be used outside the scope of public health. For example, if an MP is convicted of a crime, or provides false expenses claims at any point over the next two years, it seems undesirable that they should not be prima facie re-callable, on the mere basis of the pandemic.

It is certainly true that it would be politically difficult for the government to keep emergency powers in force longer than necessary, as there will undoubtedly be calls to repeal the legislation as soon as the crisis passes. However, the risk of ‘emergency legislation’ becoming permanent is a real danger and has past precedent – historian Yuval Noah Harari claims that  ‘many short-term emergency measures will become a fixture of life’, citing Israel’s 1948 ‘state of emergency’ temporary measures, ranging from press censorship and land confiscation, which still persist today.

For these reasons, it is argued that the Civil Contingencies Act 2004 provides a framework that better regulates executive power. It already allows for ‘emergency’ regulations to be made in ‘an event or situation which threatens serious damage to human welfare in a place in the United Kingdom’ (CCA 2004 s. 19). With ‘serious damage to human welfare’ including ‘loss of human life’, ‘human illness or injury’ or ‘disruption of services relating to health’ (CCA 2004 s. 22), the current coronavirus pandemic falls squarely into these categories.

These powers are as wide-ranging as those of the Coronavirus Act 2020, in that they enable restriction of freedom of movement, of assembly, of travel, or of other ‘specified activities’ (CCA 2004 s. 22). However, they crucially differ in that the powers granted under the Civil Contingencies Act 2004 must be reviewed every 30 days by Parliamentary vote. Given the extensive nature of the liberties being curtailed, this rule provide an essential safeguard against the exercise of arbitrary power in a way not proposed by the Coronavirus Act.

It could be argued that a longer period of unscrutinised power would allow a stronger, better-planned executive response to the crisis, which would better protect the rights of the vulnerable. If the focus is on ‘civil liberties’ alone, there is a risk that the argument becomes a majoritarian one. However, the use of the Civil Contingencies Act 2004 would not only provide better protection for civil liberties, but also more effectively preserve the rights of the vulnerable than the current legislation. As regulations made under it are secondary, they can be judicially reviewed – given that the Coronavirus Bill did not receive great legislative scrutiny, this would be very welcome. One MP, Steve Baker, commented that there was ‘not enough time to scrutinise the Bill, but [he could] glance at it… and see objectionable powers’. With limited means of challenging this primary legislation, emergency powers under the CCA 2004, with the potential for judicial review, would allow a balance to be struck between the protection of civil liberties and the public health demand for swift action. As the Supreme Court is now hearing cases virtually, judicial review can serve as an effective remedy for injustice, allowing scrutiny without the close contact between individuals that would usually occur in a courtroom.

(c) Mass surveillance power

The need for accountability becomes particularly evident in relation to the issue of mass surveillance. The Coronavirus Act 2020 relaxes the rules on the Investigatory Powers Act 2016, in order to ‘protect national security and prevent serious crime’. The previous rule  under s. 109 of the IPA 2016 allows ‘urgent surveillance warrants’ without prior judicial authorisation, as long as they are approved ex post facto by a judicial commissioner within 3 days. Under the new law, this period could be extended for up to 12 working days, quadrupling the timeframe for extra-judicial surveillance. The measure is one which the Act’s Explanatory Notes acknowledges could challenge the ECHR Article 8 right to privacy.

If such surveillance measures are considered ‘necessary’ in a coronavirus response, then the stricter time limits of the Civil Contingencies Act 2004 should be referred to in their use. The alternative is to risk the legal normalisation of mass interception of communications, device-hacking, and the use of geo-location tracking over a two-year period, on any topic.  Already, there are examples of police forces deploying drones for the purposes of monitoring government ‘essential travel’ advice, and suggesting that supermarket baskets could be individually checked to see if the items being purchased are ‘legitimate’ or ‘essential’.

These measures could open the floodgates to the erosion of privacy rights in more general legal discourse. Lord Sumption, former justice of the Supreme Court referred to these measures as creating a  ‘police state’ – ‘a state in which the government can issue orders or express references with no legal authority and the police will enforce ministers’ wishes’. Not only are these measures undesirable from the perspective of legislative clarity, they decrease trust in policing and institutional authority, as a result of disproportionate invasiveness. This lack of trust could lead to a decrease in compliance, proving counter-productive to the public health goals of the Coronavirus Act 2020. The Civil Contingencies Act 2004’s short time limits and Parliamentary review provisions are the best ways to increase public trust over these measures, as they provide the assurance that the measures will be regularly scrutinised and will lapse automatically when no longer necessary.

(d) The Enforcement of Criminal Sanctions

It is speculated that the law may move towards enforcing criminal sanctions against those who do not comply with the Coronavirus Act measures. This raises interesting questions as to whether the general criminal rules on disease transmission should apply to coronavirus transmission scenarios. As recognised by the Court of Appeal in  R. v Dica [2004] 2 Cr. App. R. 28, a person can be convicted of inflicting grievous bodily harm under the Offences Against the Person Act 1861 s.20 if they knowingly or recklessly transmit a serious disease to another person. Although the facts of Dica are concerned with the transmission of HIV, the case has served as precedent for criminalising the transmission of diseases more generally, with the Court of Appeal in R. v Golding (David) [2014] EWCA Crim 889 applying Dica to the criminalisation of the transmission of incurable herpes. An analogy could be drawn between the knowing or reckless transmission of HIV and the coronavirus. Both share a key similarity: they are the only two viral infections currently designated as active pandemics by the WHO, and thus it may be prudent for the law to treat them as similar for the purposes of establishing harm.

However, such an approach should be treated with caution, as the transmission of the coronavirus is currently less medically understood than the transmission of HIV, and with suggestions of asymptomatic transmission, it would be far more challenging for legal authorities to define what counts as ‘reckless’ spread. In fact, the asymptomatic spread element of the coronavirus can be seen as grounds for querying the Dica rules, which do not distinguish between ‘deliberate’ and ‘reckless’ spread for the purposes of criminalisation. As recent news articles have shown, the range of human responses to the pandemic are broad: it is reasonable that the individual who aims to deliberately cough on others should be held to a higher criminal standard than the spreader who acts ‘recklessly’ by going to the shops when they have a headache.

It could be counter-argued that this violates the ‘harm principle’, which claims that the purpose for which conduct is criminalised is to prevent harm to others. If the public health harm caused by the two aforementioned individuals is similar, this may provide an argument to treat the two similarly. Nevertheless, the intentional malice shown by the deliberate spreader in a time of great vulnerability and crisis should be seen as a distinguishing factor, and treated with particularly severe punishment by the law. The outbreak of such a pandemic, thus, provides an opportunity to evaluate whether the general language on ‘disease’ in this line of cases is satisfactory.

Conclusion

It may be contended that all the above discussion of rights and liberties is unnecessary, and that in a crisis scenario, the focus should be on the swiftness of the response, rather than the nature of the liberties infringed. However, it is submitted that the Coronavirus Act 2020 should not be above scrutiny, as it could have severe unintended consequences in other areas, after the pandemic subsides. The benefit of having a law that allows emergency powers, such as the Civil Contingencies Act 2004 is that it truly commits the executive to ensuring that these invasive measures are removed when the proportionate risk in question is no longer present. The current law creates greater uncertainty over the repeal of the measures, especially in the face of a threat of unknown duration. It is imperative that the freedoms which have been respected throughout the post-war period are not encroached upon for any longer than is necessary. To this end, the shorter review periods provided under the CCA 2004 and the HSCA 2008 would be far preferable for addressing issues of civil liberty.