MercoPress. South Atlantic News Agency

Coronavirus: UK government’s new emergency powers explained, balancing liberty and necessity

Unlike citizens, who can generally do anything that the law does not prohibit, in a liberal democracy the government can only do what the law allows it to do.

By Nicholas Clapham (*) – The UK government has introduced legislation as part of attempts to manage the coronavirus outbreak, handing the government wide-ranging powers to respond to a variety of emergency situations.

Under the new law, public health officers, police and immigration officers will be able to direct people suspected of being infected to places where they can be screened for the coronavirus disease (COVID-19). If necessary, these officials will have the power to hold suspected patients for screening rather than simply directing them there.

The government can also prohibit or restrict events and gatherings and close premises if public health requires this. The focus of these powers will be the owner or occupier of the premises or anyone involved in holding such an event rather than the individuals attending. Failure to comply will be an offence.

So far, the government has advised against public gatherings, but this change means that the authorities can dictate public behavior and take enforcement action for noncompliance.

Many have asked why the government has not yet banned events or closed bars and restaurants. The simple answer is that before now it has lacked the comprehensive legal power to do so. This is because in a liberal democracy the exercise of state power requires legal authority. Unlike citizens, who can generally do anything that the law does not prohibit, the government can only do what the law allows it to do.

The new legislation provides parliamentary authority for the government to act in ways that might otherwise be considered unlawful or draconian. Like much emergency legislation, it is an attempt to balance liberty and necessity.

The government will also be able to shut ports and airports if border force staff shortages make it impossible to maintain border security.

Bringing doctors out of retirement

The legislation contains measures aimed at boosting the health and social care workforce at a time when more are needed to manage the strain the pandemic will put on the NHS. Suitably qualified and experienced volunteers such as former nurses, midwives and paramedics will now be able to temporarily register as regulated healthcare professionals so they can respond to the government’s call for help. There has been speculation for some time that medical professionals and others might be asked to come out of retirement and these are the measures that make it possible for them to do so.

Other measures are also aimed at easing the burden on frontline public sector workers particularly during times of reduced staffing. For example, only one medical opinion will be required to detain and treat patients needing treatment for a mental health disorder. Usually two medical professionals need to sign off on such a decision. Also, the legislation removes the requirement that coroners must conduct an inquest with a jury where they have reason to suspect the death was caused by COVID-19.

And as many families will lose loved ones before the crisis is over, the legislation has removed the need for a second death certificate in cremation cases. There are also powers for local authorities to give directions on aspects of the death management process such as requiring crematoriums to increase operating times.

Is this forever?

Health Secretary Matt Hancock has said these new powers will only be used when it is “absolutely necessary”. The current emergency suggests a situation of overwhelming necessity to safeguard the population through the curtailment of its liberty.

The legislation covers births, deaths, weddings, funerals, healthcare, elections, justice and even intelligence operations so it does have implications for human rights. In introducing the legislation, Hancock stated that its provisions are compatible with the rights protected under the Human Rights Act 1998. The government will publish a separate memorandum explaining its assessment of the compatibility with human rights at a later date.

As for how long these powers will last, the legislation is intended to be limited to the extent necessary to respond to the COVID-19 pandemic. These new powers will expire automatically after two years.

There is provision for the powers to be extended by government for periods of no more than six months at a time but it could also be shortened if the powers are no longer required.

(*) Nicholas Clapham, Teaching Fellow, School of Law, University of Surrey