Part 2: Does the government’s COVID-19 response comply with the rule of law?

Oxford law grad and aspiring barrister Jordan Briggs examines five further criteria in this second instalment of a three-part mini-series

This is the second article in a three-part mini-series assessing the extent to which the United Kingdom government’s legal response to the coronavirus pandemic complies with the rule of law. The first article in this series introduced Joseph Raz’s eight-point conception of the rule of law, outlined key coronavirus-related legislation, and began analysis by discussing coronavirus laws’ opacity.

This article considers five further rule of law criteria. We begin with the relative stability of coronavirus laws. Next, we question whether their creation was guided by open, stable and clear general rules. Then, we assess the independence of the judiciary. Afterward, we consider whether principles of natural justice are being observed. Finally, we examine courts’ review powers over implementation of rule of law principles.

Criterion 2. ‘Laws should be relatively stable’

Coronavirus laws can be described as ‘unstable’ because they change often. Consider the history of the Coronavirus Act 2020.

The Act came into force on 25 March 2020. The next day (26 March), the Act was amended to criminally proscribe leaving one’s residence without ‘reasonable excuse’ and to affect widespread business closures (S.I. 2020/684). Twenty-six days later (22 April) the foregoing was altered to proscribe simply being outdoors without a ‘reasonable excuse’ (S.I. 2020/447). Twenty days afterward (13 May), amendment expanded the list of example ‘reasonable excuses’ and increased the monetary fine attaching to first breaches of the Regulations (S.I. 2020/500). Nineteen days later (1 June), the general prohibition against leaving home was removed, replaced by a ban on overnighting elsewhere than one’s own residence (S.I. 2020/558).

Note that the above relates only to business closure and personal movement. It says nothing of the numerous contemporaneous changes to other areas of law (e.g. tax credits (S.I. 2020/534), child adoption (S.I. 2020/445) and misuse of drugs (S.I. 2020/468)).

Nor was this a uniquely unstable period in the history of coronavirus law. S.I. 2020/684, a key piece of secondary legislation, was changed six times in the two-and-a-half months after its introduction. Similarly short-lived was the three-tier system (S.I. 2020/1103-5), which existed only for two weeks before giving way.

So, coronavirus laws appear ‘unstable’. What is added by the comparator ‘relatively’ in this context? For Raz, even unstable laws should remain capable of guiding individuals’ behaviour: if laws are too short-lived, ‘people will find it difficult to find out what the law is at any given moment’, and unhappily won’t be able to be ‘guided by law in their long-term decisions’.

Arguably, coronavirus laws are too unstable to allow individuals to plan lawful conduct. Day-to-day planning is complicated by the ephemerality of the (voluminous and complicated) law. Long-term planning is similarly problematic: it is difficult to predict what the law will be in a month from now, as the history of the Coronavirus Act 2020 illustrates. For these reasons, coronavirus laws appear less stable than the standard associated with the rule of law.

Criterion 3. ‘The making of particular legal orders should be guided by open, stable and clear general rules’

Here, Raz means that ‘particular… laws… [should be] enacted only within a framework set by general laws which are more durable’. There are two types of general law; ‘those which confer the necessary powers for making valid orders’, and ‘those which impose duties instructing the power-holders how to exercise their powers’. Gladly, coronavirus laws comply with these requirements.

First, consider the Act ‘confer[ring] the necessary powers for making valid orders’. Public Health (Control of Disease) Act 1984 empowers the Secretary of State for Health to issue statutory instruments aimed at controlling infections or contaminations in England and Wales (section 45C). Under the emergency procedure in section 45R, the Secretary may issue Regulations with immediate legal effect, without having to lay any draft before parliament. Coronavirus-related secondary legislation usually cite these empowering provisions in their ‘introductory texts’.

Second, note the ‘duties instructing the power-holders how to exercise their powers’. Section 45D of the 1984 Act provides that Regulations may only be created if the Secretary considers creation a ‘proportionate’ way of responding to a ‘serious and imminent threat to public health’. Section 45R provides that the emergency procedure may be used only if the Secretary is of the opinion that ‘by reason of urgency’ it is ‘necessary to make the order’ without laying a draft before parliament. Judicial review controls also apply: regulations (and their making) may be challenged on grounds of rationality, respect for the rules of natural justice, vires and, when the Human Rights Act 1998 is engaged, proportionality.

The instant criterion of the rule of law is satisfied, then, because coronavirus laws owe their existence to empowering legislation, and are created subject to (statutory and common law) restrictions.

Criterion 4. ‘Independence of the judiciary should be guaranteed’

Happily, little need be said here. The coronavirus pandemic has not affected a change in the selection or training of judges. The separation of powers has not been reconfigured. There is no evidence that judges’ adjudicatory practices are being influenced by external (political or other) pressures.

There is no detectable divergence from this rule of law criterion.

Criterion 5. ‘The principles of natural justice should be observed’

Emergent news reports suggest violation of this criterion. By ‘principles of natural justice’, Raz is referring to ‘open and fair hearings, absence of bias and the like’. What’s in issue, for our purposes, are ‘open and fair hearings’.

Tristan Kirk is the courts correspondent for the Evening Standard. Kirk attests that, behind closed doors in Westminster Magistrates’ Court, there have been trials of almost 300 Londoners accused of violating coronavirus-related laws. The cases, relating to alleged breaches between March and May, are heard by a single magistrate and legal advisor sitting in private under the Single Justice Procedure. That procedure, exercisable exclusively for summary-only, non-imprisonable offences, is most commonly used in road traffic cases. The accused needn’t be present, and can instead enter a plea in response to a ‘Single Justice Procedure Notice’ sent to them by post.

Kirk reports that, in coronavirus-related prosecutions, the Single Justice Procedure affected “convictions for offences [people] weren’t prosecuted for”, “hefty fines handed out which may exceed the legal maximum” with “police being allowed to [prosecute a defendant twice], when [the original] paperwork is botched”.

Curious goings-on at Westminster magistrates in prosecutions for breaking the first coronavirus lockdown:

– Convictions for offences ppl weren't prosecuted for
– Hefty fines handed out which may exceed the legal maximum
– Police allowed to try again when paperwork is botched

— Tristan Kirk (@kirkkorner) November 11, 2020

On some days, an average of “just two-and-a-half minutes” was allocated to dispense with each case, sometimes on the basis of only “very thin” evidence. That “[v]ital open justice safeguards [have been] ignored and forgotten” is objectionable then, both on its own terms, and because in consequence “obviously flawed prosecutions [have been] going through unchallenged”.

These departures from “open justice” violate the instant rule of law criterion.

Criterion 6. ‘Courts should have review powers over the implementation of other principles’

There is no violation of this rule of law principle because courts remain competent to review secondary legislation and executive exercises of power. To confirm that ordinary courts’ judicial review practices are continuing, one need only visit judiciary.uk and look at the judgments that are being handed down every day.

Courts also have review powers over the new coronavirus laws. The High Court has twice refused to condemn the principal coronavirus-related statutory legislation.

First, in May 2020, the High Court heard R (Hussain) v Secretary of State for Health and Social Care. The applicant challenged the (then) regulations, whose effect prohibited him from attending mosque for Friday prayers. Swift J, dismissing the challenge, found that the regulations did not unlawfully discriminate (contra Article 14 ECHR), nor did they disproportionately interfere with the applicant’s rights to practise a religion (contra Article 9).

Second, in July 2020, was R (Dolan) v Secretary of State for Health and Social Care and Secretary of State for Education. The applicant challenged the government’s approach to the pandemic, drawing attention to the damage sustained by the economy, the impact on education and difficulties associated with treating patients for non-coronavirus related medical conditions. Dismissing the challenge, Lewis J held inter alia, that the regulations were intra vires the 1984 empowering Act, that the Secretary had not followed an unlawful decision-making process in making the regulations, and that the regulations did not unlawfully interfere with Articles 5, 8 or 11 ECHR.

There has been only one successful challenge to coronavirus-related secondary legislation. On 24 November 2020, the Court of Appeal handed down judgment in R (Article 39) v Secretary of State for Education. The Court unanimously held that the Secretary of State had acted unlawfully in failing to consult the Children’s Commissioner for England before removing legal safeguards applicable to 78,000 children in the English care system. While accepting that the regulations were made under pressure, Baker LJ held that “the urgency was not so great as to preclude at least a short informal consultation” and that the Secretary’s failure to consult was “conspicuously unfair”. The remedy was a declaration of unlawfulness, given that the regulations were no longer in force.

As courts remain competent to review ordinary and coronavirus-related secondary legislation, there is no violation of this rule of law principle.

Interim conclusion

What have we covered so far? In the first article, we observed that coronavirus laws, while prospective and open, might be so unclear as to disempower people from planning their lives in accordance with the law. In this, the second article, we found that coronavirus laws’ instability could produce a similar plan-obfuscating effect. We also discussed Westminster Magistrates’ Court’s supposed deviations from principles of natural justice.

However, three matters pointed toward compliance with the rule of law. Coronavirus laws are guided by open, stable and clear general rules. The independence of the judiciary remains. Courts remain capacious to review implementation of other principles.

In the third and final article in this mini-series, we will consider whether courts have been easily accessible during the coronavirus pandemic, and whether the discretion of crime preventing agencies has been allowed to pervert the law. I look forward to seeing you there.

Jordan Briggs graduated in law from the University of Oxford and began an LLM at the LSE in September. He is an aspiring barrister.