Alongside its huge health and societal impact, the coronavirus crisis is also reshaping our legal landscape. Responding to the pandemic has led to the creation of the most intrusive and stringent laws of modern times, affecting every aspect of our lives.
Almost all of those laws made by the government over the past year have been as secondary legislation – that is, regulations made by ministers – rather than primary legislation, which is approved by the House of Commons and the House of Lords. Using secondary legislation is quite normal for technical measures or for filling in the detail of laws created by acts of parliament.
The Covid legislation we have seen so far, however, is unusual in several ways. First, the controls being imposed by the government are unprecedented in their nature and scope. More than 370 sets of regulations have been made in response to the Covid-19 outbreak. Many of these measures cannot remotely be regarded as “secondary” or merely technical. In various ways they have restricted our liberty, movement and social activity, as well as the opening of schools, businesses, amenities, places of worship and many other organisations. Second, ministers have very often followed the most urgent form of parliamentary procedure: this means the new regulations are not subject to any parliamentary scrutiny before they come into force and, typically, very little afterwards.
Finally, in many cases there has been only a short gap between the making and publication of regulations and their coming into force. In some instances that has been as little as one hour. The most recent regulations, for instance, imposing hotel quarantine obligations on travellers arriving from overseas, were made at 11am on Friday 12 February, to come into force at 4pm the following Monday. So although the outline of the policy had been under consideration for weeks, travellers, hotels, travel companies and everyone else had only a weekend’s notice of the detailed obligations contained in the new law.
Exceptional circumstances can justify exceptional responses, and the pandemic has been an unprecedented time for the country. It is understandable that, in an emergency, laws may need to be changed very quickly and some normal procedures might be curtailed. I know from firsthand experience how great a strain Covid has placed on the government and the processes of making policy and law. I know how hard my former colleagues in the civil service have worked to respond to those demands – including the government lawyers who have drafted complex legislation, often at high speed, sometimes overnight.
But this is not a desirable way of making law. If important new laws are published only hours before they take effect, how can anyone be expected to understand what they say? How can they prepare to comply with them?
I’m not fancifully imagining that, each time the government introduces new Covid controls, most citizens sit frantically refreshing their screens to read pages of detailed legal text. But that detail is there for a reason: the detail is the law. Law is not set by ministerial press conferences or government publicity campaigns, however mandatory or bloodcurdling the language. It is set by the legislation itself. It is a fundamental requirement that laws should be reasonably accessible; that those affected by legislation should be able to find it, read it and if necessary seek legal advice on it. Many businesses certainly need to know precisely what the legislation says. So, too, do the police, whose job it is to enforce the law. When important legal text is hard to find or is available only at the last minute, this leads to uncertainty or confusion about what the law actually says. It creates inconsistency between the letter of the law and guidance, and different approaches to enforcement being adopted by different police forces.
None of that promotes confidence in the law or the way it is produced. It also doesn’t help people understand what the law says or comply with it – this is particularly key during the pandemic when compliance with certain rules is potentially a matter of life and death.
If decisions about such important changes to the law are constantly being made too late to allow for any advance scrutiny by parliament (or anyone else), there can be no proper testing of the policies. These often involve the most sensitive judgments about the right balance between the protection of public health and the wider impacts on people’s lives and on the economy. Failure to scrutinise them cannot be the way to make the best decisions, or to create consensus around the sorts of stringent controls deemed necessary throughout the pandemic.
The government’s approach to legislating in response to Covid-19, although it may be justifiable for the most pressing of emergencies, should not become a template for future policies or law-making, more generally. That would lead to worse policy and worse law, and undermine political and public respect for both.