Prior to the commencement of the Coronavirus Act 2020 in March, opposition MPs secured a six-month ‘sunset clause’ to allow for at least some parliamentary scrutiny over its scope. At the 11th hour of the six-month point, a Conservative rebellion against the Act was quelled when the government promised to consult parliament on major lockdown measures in future. At this, and in the midst of a rapidly unfurling second wave of COVID-19 infections, parliament voted to renew the Act for a further six months.
It is surely only in such unusual and dire circumstances that an Act so corrosive of our long-held civil liberties could possibly survive, fully intact and largely unaccountable to parliament in any meaningful way. As infection rates increase across the country and the three-tier lockdown system takes hold, it is inescapable that we are moving into a new phase of the government’s pandemic handling, where punitive enforcement is yet further elevated over measures aimed at cooperation by consent (for example, by providing adequate financial support to businesses and individuals forced into lockdown and to those who cannot afford to self-isolate).
To this end, the police remain armed with extraordinarily wide powers under the Act, from requiring a person to disclose with whom they have been in contact and where they have been, to detaining a person they deem to be potentially infectious, forcing them to be tested for COVID-19 and keeping them in quarantine with no upper time limit or judicial oversight.
Alongside this, the current Health Protection (Coronavirus, Restrictions) Regulations in England and Wales,1The Health Protection (Coronavirus, Restrictions) (No 2) (England) Regulations 2020 SI No 684; the Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020 SI No 750; and the Health Protection (Coronavirus Restrictions) (No 2) (Wales) Regulations 2020 SI No 725.
and the new regulations implementing the three-tier lockdown system in England,2The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 SI No 1103, the Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020 SI No 1104 and the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 SI No 1105.
create a number of criminal offences and restrict gatherings to various sizes and locations depending on the rates of COVID-19 infection in particular geographical areas, and impose conditions on exempted gatherings, including on protests, which is particularly dangerous at a time when civil liberties are being seriously curtailed by executive action.
Under the current laws, protests are exempt from the rules on gatherings if the following conditions are each met:
1they have been organised by a business, a charity, a benevolent or philanthropic institution, a public body, or a political body (or, in Wales, ‘a club or political organisation’);
2the organiser has carried out a risk assessment that meets the requirements of the Management of Health and Safety at Work Regulations 1999 SI No 3242; and
3the organiser has taken all reasonable steps to limit the risk of transmission of coronavirus, taking into account their risk assessment and any relevant government guidance.
While these conditions may seem reasonably clear, some police forces have struggled with the definition of ‘political body’, and there is no clear guidance on what a compliant risk assessment looks like. This lack of clarity is wholly unacceptable given that breach of the rules, even if inadvertent, may result in a fine of up to £10,000 and a criminal record. Additionally, there is no statutory right of appeal against a fine, so the only ways to challenge them are either by running the gauntlet of the criminal justice system and hoping for the best, or pursuing a judicial review challenge and potentially being exposed to the risk of significant adverse costs on top of the fine.
If the Act and regulations lack clarity, the requirements are further muddied by inconsistent government guidance, which is often presented as the law but is not, in fact, enforceable. Law and guidance diverged at the very beginning of the national lockdown, confusing citizens and the police alike, but as the year has progressed, rather than becoming clearer, the situation has only become more complex.
This entirely unsatisfactory state of affairs is all the worse for Black, Asian and other minority ethnic individuals, who, the Guardian
and Liberty Investigates revealed in May this year,3Mirren Gidda and Mattha Busby, ‘BAME people disproportionately targeted by coronavirus fines’, Liberty Investigates, 26 May 2020.
were 54 per cent more likely to be fined under coronavirus legislation than white people. It was perhaps entirely predictable that coronavirus laws would make existing inequalities worse, but this is all the more stark and egregious against the backdrop of international outrage at the police killing of George Floyd in America, Black Lives Matter protests across the world, and, for the first time, widespread acceptance by private and public bodies alike (although notably not by the Metropolitan Police Service commissioner, Cressida Dick) of the pervasiveness of structural and systemic racism, and the urgent need for it to be eliminated.
Prior to parliament’s vote on the survival of the Act, a broad coalition of charities and human rights groups called on parliament to scrap it. This followed a recent poll conducted for Liberty in which 76 per cent of people said that human rights should be protected during this national crisis, and 66 per cent said that everyone should be able to access state support.4‘Damning poll shows public wants pandemic strategy that protects rights’, Liberty, 4 September 2020.
The decision to renew the Act was a rejection of public opinion and expert advice from across the charity and human rights sectors, and a missed opportunity for parliament to create a rights-respecting public health response to the pandemic instead of a blunt-edged criminal justice response.