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Artillery Row

Emergency powers – which, why and how long?

The coronavirus emergency powers legislation is not open to amendment

“We are implementing a dystopian society” announced Steve Baker in the Commons on Monday as he gave his backing to legislation that ran counter to the libertarian instincts that had propelled him to stand for Parliament in the first place. According to the Conservative MP for Wycombe, the Coronavirus bill implements “a command society under the imperative of saving hundreds of thousands of lives and millions of jobs, and it is worth doing.”

Emergency legislation almost inevitably combines the most far-reaching measures with the least time for parliamentary scrutiny. It proved to be so with the defence of the realm and emergency powers acts in the two world wars and it is true now with the legislation that the government has devised to deal with the worst pandemic for a hundred years.

A House of Commons already greatly depleted by the self-isolation and social distancing imperatives of the crisis had but two hours to consider in committee of the whole house the 329 pages of legislation and related schedules. It did its job as best it could. Scope was limited, for the opposition opted to avoid divisions and such concessions as the government made were agreed in the hours before the Commons sitting began. Having sped through the Commons on Monday, the bill will canter through (an also depleted) Lords on Tuesday to ensure royal assent by Thursday, just before parliament breaks for Easter recess and the uncertainty that lies beyond.

Whilst wartime legislation is the historical reference point, this legislation sanctions the closing of traditional rights of assembly and social contact unseen since the 1650s when Cromwell’s republic briefly instituted the rule of the major-generals to enforce wholesome behaviour. The excesses of that sorry episode were driven be religious speculation that there was a connection between the country’s ungodliness and its troubles. This time we are spared the religious zealotry, but are even more certain of the connection between social intercourse and our doom.

This time we are spared the religious zealotry, but are even more certain of the connection between social intercourse and our doom.

Yet, this will be an Act of parliament that does more than facilitate the prolonged closure of our places of congregation and our taken-for-granted liberty to go about our business as we may without threat of fine. Designed to permit civil administration to continue when its manpower is severely depleted, it removes protections, safeguards and expectations across all manner of services and provisions.

The legislation gives the State the power to enforce quarantine, to cancel elections, shut schools and to weaken parliamentary oversight of intelligence-gathering.

Civil and family courts in England, Wales and Northern Ireland can hold hearings remotely by video and audio link (except in criminal trials requiring juries). Ports and airports can be closed if sickness causes absentee levels among border security staff that are perceived a threat to the security of the realm. The bill streamlines and makes easier the recording of deaths (the cause of death need no longer be determined by a doctor who has seen the deceased) and the processing of funerals. One important last-minute cross-party intervention of especial concern to Britain’s Jews and Muslims has now ensured that nobody will be cremated counter to their wishes or the tenet of their faith.

Legal time-limits can be removed governing what would previously have been the short-term detention of mental patients. An individual can now be sectioned by a single doctor (previously it required two) and, if need be, that doctor could be unfamiliar with the patient’s case. Thus you could be sectioned for long periods by a stranger, albeit a professionally-qualified one.

Introducing the second reading debate, Matt Hancock offered the reassurance that “the measures would only be activated in circumstances where staff numbers were severely depleted. They do not remove the duty of care to an individual at risk of serious harm or neglect.”

The Health Secretary is a man clearly doing his utmost in unenviable circumstances and he should be taken at his word. But it is possible to foresee unhappy consequences resulting from a hasty diagnosis going unchecked. For the unspoken truth of this legislation is the admission that safeguards that protect some individuals are being sacrificed so that the considerably greater good can be served. Fīat jūstitia ruat cælum makes for a fine motto. But the absolute supremacy of justice is useless against a killer virus.

the absolute supremacy of justice is useless against a killer virus.

The Commons debate was defined by two questions. The first concerned what the legislation would empower the State to do that it could not already perform under existing law. The second was whether parliament could only continue or end the measures in their totality at six month intervals, or whether it could amend individual provisions at these twice-yearly intervals.

In asking these questions, the Conservatives’ David Davis and Labour’s Chris Bryant made the most cogent contributions. It was their contention that the Government already enjoyed the powers it required through the 1984 Public Health Act and the 2004 Civil Contingencies Act.

To the claim that coronavirus was not covered in the emergencies envisaged by the 2004 legislation, Davis cited the parliamentary counsel, Daniel Greenberg, who insisted that the Civil Contingencies Act “is clearly capable of being applied to take measures in relation to coronavirus.” It was Greenberg who drafted the 2004 Act.

So why, then, is this new emergency bill necessary? Bryant and Davis suggested two explanations. Firstly, because the 1984 and 2004 Acts required renewal of their provisions in 28 and 30 days respectively, requiring a level of regular parliamentary scrutiny that the government, with much to worry about, would rather avoid. Secondly, because secondary legislation is subject to judicial review but primary legislation is not. The coronavirus bill is primary legislation (Hancock has, however, attested that it is compliant with and subject to the European Convention on Human Rights).

Although it has its roots in planning that the Cameron government made for a possible flu epidemic in 2011, much of the coronavirus bill has been drafted in recent days against a ticking clock whilst scientific advice has constantly developed (shifted, if you prefer). Neither the bill’s drafters nor any other crystal ball-gazer can be sure whether its provisions are adequate to the challenge nor how long the crisis will require its clauses to be enforced.

Extraordinarily, the government originally envisaged that the legislation’s emergency provisions would only lapse after two years without interim parliamentary review. By comparison, the wartime emergency powers had to be re-sanctioned by parliament annually. The prospect of both Tory backbench and Labour frontbench amendments forced a rethink. So the government went into Monday’s debate with a hastily-tacked on amendment of its own to permit parliament to review the Act every six months during its two-year operation.

At first glance this seems a sensible compromise. In reality it is nothing of the sort. What David Davis and the opposition frontbench (whose case was well-articulated by its shadow solicitor general, Nick Thomas-Symonds) wanted was for parliament to be able every six months to review the Act and amend particular clauses according to legislators’ determination of their value having seen them in operation.

At first glance this seems a sensible compromise. In reality it is nothing of the sort.

However, the Government amendment only permits parliament at six monthly intervals to vote to keep the temporary provisions in their entirety or reject them in their entirety. This is the politics of “take it or leave it” with the Government knowing that parliament would not risk overturning the full-battery of measures just because it had qualms about one or two of them. It can therefore be predicted that we will have this legislation, in full, for two years. That will give ministers comfort. But in denying parliament the ability to undertake keyhole surgery to minor malignancies a disservice to nimble legislative review has been performed.

Nobody, its proposers included, would philosophically desire this emergency legislation in any circumstances other that the grim ones to which it is addressed. As Matt Hancock pledged, “we ask for these powers as a whole to protect life. We will relinquish them as soon as the threat to life from coronavirus has passed.” Nevertheless, through ease rather than design the possibility of mission creep exists given the breadth of areas that could be tangentially-touched by coronavirus.

Despite objections to the binary manner in which the bill’s provisions can be reviewed before salvation arrives, Tory sceptics and the opposition united to put aside their qualms in order to speed the greater good. The cooperation goes beyond the Tory and Labour frontbench. For this is legislation that has been passed on behalf of the four administrations of the UK and with the involvement and consent of the Scottish, Welsh and North Irish executives in its drafting.

Devolution does not stop just because a virus has dominion across the kingdom.

It will be up to each of these four administrations to decide within its own areas of competence which measures to activate and which to keep dormant until perceived necessity requires any one provision to be “switched on.” Some measures may never need to be implemented and indicating her hope that this would be so was Penny Mordaunt, the Paymaster General, who wound-up the debate for the government and took the bill through the committee of the whole house.

She further confirmed that whilst Westminster would enact the legislation across the whole UK, once the devolved governments chose to implement its individual provisions it would be up to their own legislative scrutiny to determine continuance in their own domain. Devolution does not stop just because a virus has dominion across the kingdom.

But once they have enabled the measures at their disposal, each of these administrations must fight the temptation to get too used to them. As Steve Baker, his voice breaking with emotion, reminded a sombre chamber, “my goodness, we ought not allow this situation to endure one moment longer than is absolutely necessary.”

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