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Known by some but largely unseen by many—law in a time of crisis

Matt Seys-Llewellyn

15 Dec 2020

REUTERS/Simon Dawson (Photo)

One can learn a lot from observing an organism under stress. But what if the law itself could be reviewed like an organic structure? In the same way that the emergence of COVID-19 made us all amateur bioinformaticians, the Coronavirus regulations seem to have something of their own DNA—a mix of written law and societal expectations.

Recently, the Rt Hon the Baroness Hale of Richmond DBE, who retired as President of the Supreme Court of the United Kingdom in January of 2020, presented at the annual Romanes Lecture at Oxford University. Lady Hale’s topic was timely, being a reflection on the difficulties of law-making in a time of crisis with a particular focus on the first iteration of the United Kingdom’s Coronavirus regulations and some of the issues that can arise when laws are made quickly to combat an emergency, such as perceived deprivation of liberties. These points were due to be considered by the Court of Appeal in R v Dolan & Others and Lady Hale was careful to remind us that she is now retired and did not want to influence their deliberations. Furthermore, the next raft of legal instruments have been prepared to facilitate and amend Coronavirus restrictions for the Christmas period, and perhaps only the broad brush strokes will remain relevant when historians come to review this in the detail it deserves.

Lady Hale’s analysis of the constitutional implications of law-making in a crisis was impeccably clear and orthodox, opening with a cogent discussion of the ideas of Cicero and Lord Atkin in a way many of us would have expected. Lady Hale’s explanation on Liversidge v Anderson on the legality of detention without trial at the outbreak of the Second World War and how the case was revisited in the years that followed was masterly and reflects a lifetime of deep thought on questions of state power and human dignity. But for me, her opening point about multiple sources of law that affect all of us (both written and unwritten, for the world is full of law) was more subtle and speaks to the obedience of the law in a wider way.

An evolving response

The middle of February was a particularly febrile time as it became clear that the virus was moving beyond an endemic and people began to give actual credence to the idea it would spread beyond Italy and China. The first rules began as requirements for travellers who were symptomatic or if they had visited certain regions of Italy or Hubei province in China. That was simple enough to understand with an ‘is or is not’ geographical question and what were thought to be clear and always present symptoms. The impact on the public was limited to a small outgroup and brought little concern about legality. Then came the Health Protection (Coronavirus) Regulations 2020/129 to commence the first lockdown. Some 554 legal instruments later, in England we now live under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020/1374 with London entering the very highest tier just before Christmas.

How do you trace the law making that comes off that initial action? Laws can develop organically like rhizomes, roots with rules branching off in many different directions but ultimately linked back to where they started. But here there isn’t always a single unifying Act under which each regulation has been made, which can make it difficult for lawyers to stay current. Of course, even if a consolidating Act appears later you can often find the clippings of earlier wording and concepts, or the old lacunae now covered by a fresh outgrowth or tendril.

Sustainable response

As COVID-19 continues, businesses need to think about how to keep their operations going, how to access funding, and to make decisions in a situation that can change hourly. The first wave of changes kept every lawyer on edge as they sought to understand and explain to clients the effects of rules delivered first by press release and only later put down in any detail. I doubt the phrase ‘working at pace’ have ever been truer. The anticipation of change as a constant, as we near the end of the year and the UK’s final exit from the European Union—lawyers and clients alike will surely have sustainability as a paramount goal.

Even with everyone incentivised by a need for self-preservation it was clear that a law would need to be passed to provide individuals and businesses guidance on how to respond to COVID-19—both liberties and restrictions. So it was completely right for Lady Hale to question under which source of law the government responded, noting that the first set of regulations were made not under the Civil Contingencies Act 2004 or by passing a special Act (which was to come much later) but instead under a delegated power in the Public Health (Control of Disease) Act 1984 (PH(CD)A 1984), as amended, making a declaration of serious and imminent threat. The Civil Contingencies Act was meant to create a framework for immediate, urgent, law making in a crisis that would give the Government of the day well understood powers under known safeguards. Arguably, that should have included the coronavirus situation. We may never know the exact reason for using the PH(CD)A 1984 here—although I think it may involve the idea of topic recognition—civil contingencies being a response to human action, whereas public health is harder to pin down to individual actors (as had been tried in February). Perhaps that was even the intention to make this a more technical and abstract response rather than associated with any of the measures one might expect after, say, a terrorist attack. The regulations were essentially to require people to stay home—obviously the humanitarian course of action, but what about everything else? How are businesses to keep their employees safe (if working) and how to pay the bills if they are not?

From the initial lockdown and subsequent restrictions, the impact of the virus quickly moved from just a public health concern into the economy. Alongside support like the furlough scheme it was clear there would need to be even more legislative intervention to keep the economy from total collapse leading to (among other things) further law-making for the temporary amendment of competition law to allow supermarkets to co-ordinate their buying, suspension of evictions from a secure tenancy for the non-payment of rent, and numerous changes around sick pay and benefits. In a sense it was an attempt to achieve a kind of legal homeostasis, limiting the secondary effects of the Coronavirus situation by preventing the usual reactions for what was anticipated to be—but could not be promised—only for a short time.

Law as guidance—guidance as law?

Finally, it is a very fair critique when Lady Hale noted that guidance was often presented as law, in multiple fields, perhaps out of the best of intentions but with precious little clarity on the effects when people had to advise themselves. Certainly it did not help when trying to understand what the effects might be if the police were called to resolve a situation and there were not yet many emergent norms on how to behave safely and courteously if you were outside in a public place. Without that praxis, which needed to co-evolve alongside the law, one could ponder what might be permissible or at least permissible enough in the circumstances set against both potential punishment and the risk of catching the virus—and potentially spreading it. However, even if the initial Government messaging needed to be brief, urgent, and informal the actual detail should be following shortly behind so that it can be scrutinised and perfected by Parliament and the Courts.

In conclusion, and as Lady Hale reminds us, the themes of law-making in a crisis are well known and well understood. But in reacting to a threat where personal responsibility to ensure social distancing had to be the foremost solution, the Coronavirus Regulations yield some new themes. They required a different way of communicating rules to the public against their ordinary way of living but without lawyers as intermediaries. They have been tweaked and amended to enable diffuse areas of the law to swing into line behind government policy, often at great speed. That was so even as the first response to the crisis was replaced by greater knowledge of how the virus behaved and a spiralling number of arguably necessary interventions in all areas of law and life. But even allowing for that, the essential feature of law—rules to compel obedience—must be clear when depriving people of their liberties which has both impact to individuals and businesses. Organically developing law does not just grow by expediency upon expediency but must be reviewed as the situation develops and guided upwards into the light.

 

In-house agenda: April 2021 Outcome: Spring 2021 Budget—Practical Law’s summary Post-Brexit: A new report on meeting the challenge of legislative divergence Spring 2021 Budget—Practical Law’s predictions Podcast—Remote hearings and the future of global arbitration The Hearing: Episode 67 – Brexit in the time of COVID-19 BAME lawyers in public sector on systemic racism and re-defining what a UK citizen looks like The Hearing: Episode 60 – Radd Seiger A call to action to dismantle institutional racism in the UK The Hearing: Episode 59 – David Brown