Emergency Legislation: A Layman's Quick Glance
Tomorrow, 23rd
March 2020, emergency legislation will receive its second reading in the House
of Commons. The Coronavirus Bill 2020 is
a big piece of legislation. It is an
impressive piece of work. Many people must
have worked long hours to pull this together in such a short period of time,
even taking into account material that has sat in the background waiting for
when it was needed (I would guess that this represents only a small proportion
of the Bill). Inevitably it looks like
what it is, a rushed job. Probably the
best that could be achieved, but a rushed piece of work nonetheless. The requirements of various government
departments have been stitched together to provide the tools that government
believes are necessary to confront the current pandemic.
The Bill is an
enabling piece of legislation. It is not
known when its various provisions will be used, or indeed if they will be
used. However following on from the
Royal Assent one imagines that there will be a raft of regulations appearing
very quickly.
The government
has issued a ‘Summary of Impacts’ because a formal impact assessment is not
required for temporary legislation. In
this case temporary means two years.
There will be very little opportunity for an examination of the Bill by
MPs and Peers. Speed is required but, in
a democracy, the taking of super powers by the state is always going to be uncomfortable. The operation of these laws will need careful
monitoring. The Summary of Impacts
describes the process behind the Bill as follows:
“Powers are for use only if needed, judged on
the basis of the clinical and scientific advice. Safeguards have been built in
to ensure that powers are only used as necessary, for example during the peak
of a coronavirus outbreak. The aim is to balance the need for speed, as
appropriate to the risk posed by the virus, with safeguards to ensure proper
oversight and accountability.” (SofI)
The Bill is
divided into two parts with 27 schedules.
The Bill is
intended to have the following effects:
“enhancing
capacity and the flexible deployment of staff; easing of legislative and
regulatory requirements; containing and slowing the virus; and managing the
deceased” (SofI).
Although I have
used the phrase ‘managing the deceased’ (or the dead) for many years I still
find it uncomfortable and ungainly. The
meaning is obvious but the wording is cack-handed, especially later in the
document where the ‘death management industry’ is mentioned. A very small point but enough to remind us
that lives will be lost and that we must face the prospect of changing the way
we deal with the dead. I learnt a lot
about this subject when I joined the London Resilience Team in the aftermath of
the 9/11 attacks in the US and more recently in other circumstances. A subject that appears simple from the outside
is formed of a serious of wicked problems, both technical and social.
Clauses 2-16
provide for the much discussed arrangements for the emergency registration of
health works and other health and social care provisions, some of them
sweeping.
Clauses 17-20
considers the question of death registration in an attempt to reduce the impact
of the need to register large numbers of deaths.
Clauses 21-22 provides
recognition of the need to be able to carry on the arrangements under the
Investigatory Powers Act. The Summary of
Impacts points out:
“There
are currently 15 very senior Judicial Commissioners, many of whom are in high
risk groups from the virus itself or highly likely to be affected by other
measures the government is taking to mitigate the virus’s impacts”. (SofI)
This is pragmatic
provision. Judicial Commissioners tend
to be old and are appointed because of their vast experience. Their role is very important and sits at the
heart of the balancing act that exists in investigations of national importance. This is work that cannot be interrupted.
Clauses 23-25
are designed to safeguard food supply.
Clauses 28-29
remove the need for jury inquests for coronavirus deaths.
Clauses 35-36
make provisions for the direction of educational establishments.
Clauses 46-50
are among the most controversial in the Bill and give additional powers
(including to the police) for the protection of public health. Few constables will feel comfortable in
exercising these powers and the practical difficulties are likely to be
significant (as seen in the Isle of Man this week). This part of the Bill also creates offences
and allows the use of reasonable force. (Schedule 20).
Clause 50 relates to powers to prohibit gatherings and
events and to direct premises to close.
This will cause will create equal powers across the UK and will avoid
the need for the use of licensing powers as occurred in Scotland today (or at
least the threatened use of such powers).
Clauses 51-55 provide
for the increased use of video links etc in court proceedings.
Clause 56 is
starkly headed: Powers in relation to bodies. In this case the bodies are human
remains. There will be considerable
caution in the use of these powers.
Officials, planners and Ministers are well aware that the treatment of
the dead is seen as a reflection of the state of our civilisation. The
Summary of Impacts describes the challenge succinctly:
“The
average weekly death rate is roughly 11,800 deaths which fluctuates between
14,800 deaths during winter flu season and drops to 8,500 in milder months.
Under current planning assumptions roughly 50% of total deaths from coronavirus
could fall across a three week peak. A death rate of this scale would far
exceed existing capacity in the death management industry” (SofI).
“The
only way to ensure bodies are not stored for longer than appropriate is to
increase body disposal capacity. This may require direction of crematorium and
burial sites to increase their throughput by extending operating hours and
curtail or ceasing services. This will bring additional risks to these businesses
and likely will financially disadvantage them. Therefore, the individuals
coordinating the death management system during this emergency require the
power to direct them to increase their capacity.(SofI)
The ’death
management industry’ is said to be unregulated and fragmented and therefore it
is thought that powers to direct are required.
It should be remembered that the challenge here will be around storage
and disposal. Many other mass fatality
scenarios demand extensive processing of the dead because of the need to
conduct post mortem examinations and to achieve the identification of disrupted
bodies. But the volume of the dead in
the case of a pandemic creates problems of scale not seen elsewhere. This is the face of reality in the current
circumstances.
Clauses 57-66
Deals with the need to postpone various elections. This is a big step for a democracy.
Clause 67
addresses the requirement to reduce the numbers of signatures from Lords of the
Treasury to conduct the business of that department. A technical issue but one that is a reminder
of how deep into the business of government and society this crisis extends.
Clause 75
creates a 2 year ‘sunset’ for the Act.
Why two years? The arrangements
that surround this simple clause are complicated and will require careful
attention.
Clause 86 allow
the Queen (who is also Lord of Man) to extend the provisions, by Order in
Council, to the Isle of Man. We (mainlanders) sometimes forget that the
Isle of Man is not part of the UK.
The 27 schedules
to the Bill contain the real detail and are the product of some heroic
drafting.
A question for
some in the field of civil protection is ‘where was the Civil Contingencies Act
(CCA) when we needed it’ The Summary of Impacts gives a hint in the section
that discusses the dead:
“We
considered using the Civil Contingencies Act (2004). However, part of the
triple-lock on activation on this legislation is that you cannot see the
emergency coming. Therefore, as there is doubt whether the ‘urgency’ can be
evidenced, there is legal risk that CCA measures, as secondary legislation,
could be struck down and leave the government without the powers it needs to
prepare for and respond to a RWCS outbreak”. (SofI).
Perhaps one of the
things that needs to be done when the outbreak is over is to replace the CCA
with something more fit for purpose.
Philip Trendall
Scott Trendall
Ltd
22nd
March 2020
The views in
this blog are personal and are representative of no official body. They are the views of a layman and are not
meant to be an interpretation of the law.
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