We’re publishing a guest post today by Daily Sceptic regular Dr. David McGrogan, as Associate Professor in Northumbria Law School, about the Government’s reliance on the Public Health Act 1984 to railroad through all the Covid restrictions of the past 18 months and which will almost certainly be invoked to justify vaccine passports if and when they’re introduced. He applauds the Covid Recovery Group’s efforts to reform the PHA, but thinks they’re unlikely to succeed because our supine MPs quite like the current arrangement for self-interested reasons.
In a recent piece, Toby accurately laid out the basic legal position with regard to almost all of the various Covid-related restrictions brought in since March 2020. That is, although there is such a thing as the Coronavirus Act 2020, and although some of its original contents permitted the Government to do things that were quite draconian, it has not been the source of any of the restrictions that have been imposed. These have more or less all come through secondary or delegated legislation under the Public Health (Control of Disease) Act 1984, making the Coronavirus Act 2020 a bit of a red herring. I thought it would be useful for readers of the Daily Sceptic to understand what this is all about, why it is, frankly, an outrage, and why the Covid Recovery Group of MPs are focused on repeal of the 1984 Act rather than the 2020 one.
It is important to provide a bit of background on this for readers without a background in law or politics. In U.K. constitutional arrangements, only Parliament can create law, which it does through primary legislation: an Act of Parliament. Only Parliament can create law, because only it comprises (in the form of the House of Commons) the elected representatives of the people, who are sovereign. In practical terms, of course, most Acts originate as bills put forward by the government, but governments cannot simply make laws by decree – they must pass through the legislature.
However, it has long been thought that getting Parliament to pass Acts for every piddling thing a government might wish to do would be time-consuming and get in the way of efficiency and expediency, and hence there has evolved a system of delegated legislation. Delegated legislation is, basically, law that is created by a government minister or other public body through powers granted them by an Act of Parliament. Parliament passes an Act (primary legislation) which specifically grants the power to a minister to make certain orders or regulations, and the minister thereby creates legislation lawfully because Parliament has said he can. Usually this is done for fairly trivial and/or technical matters that it is not worth spending parliamentary time on.
The question, as you may already have spotted, is whether, when a minister creates a specific piece of delegated legislation, the Parent Act actually gives him the power to do so, or if he is acting beyond his remit or “ultra vires”. If the former, fine; if the latter, the delegated legislation was unlawfully made and will typically be “quashed” by a court.
Almost all of the lockdown-related restrictions that have ever been introduced – the prohibition to go outside without a reasonable excuse, the mask-wearing, the rule of six, the tiers, the prohibition on “mingling”, etc. – have been created through delegated legislation. A Government minister (in almost all cases the Secretary of State for Health, who was at the time, of course, Matt Hancock) is granted the power to make regulations to control disease under an Act of Parliament, and – hey presto! – the next thing you know is that you’re being forced to wear a mask on public transport (or whatever). Perhaps surprisingly, the Parent Act in question here has not been the Coronavirus Act 2020, but a hitherto little-known piece of legislation called the Public Health (Control of Disease) Act 1984. It is this Act which has provided the legal justification for effectively all of the day-to-day restrictions on our lives – and which the Government intends to go on using if (when?) it introduces vaccine passports.
In the case of Dolan v. Secretary of State for Health and Social Care, the legality of the various regulations was challenged on the basis that the Public Health (Control of Disease) Act 1984, amended in 2008, simply did not grant the Secretary of State for Health the power to make things like going outside without a reasonable excuse, performing public worship, or “mingling” with somebody outside one’s “bubble” unlawful. In other words, he had in most cases been acting ultra vires. The Court of Appeal thought otherwise. In its view, since the 1984 Act gave the power to a minister to make provisions of a “general nature”, including “special restrictions or requirements”, to control the spread of disease, then as surely as Bob’s your uncle all of the regulations that had been introduced had been lawfully made. Never mind that no parliamentarian in 1984, or even in 2008 when the Act was amended, could have possibly envisaged that it would give Government ministers the power to intern the entire population in their homes, wear face masks, stop working, etc. As far as the Court of Appeal was concerned, the language of the Act was clear and that was that.
I mentioned that this was all an outrage, and the reasons should I hope be obvious. Thanks to the absolutely supine nature of the Court of Appeal’s decision in Dolan, Government ministers (it will probably be Sajid Javid, but it doesn’t have to be) have carte blanche to make almost whatever restrictions or requirements they like in respect of “stopping the spread” of the virus, on the basis simply that the 1984 Act lets them make “special restrictions or requirements of a general nature”. This is how restrictions will be reintroduced, if they are, and it is how the vaccine passports scheme will be given effect. It will all be done essentially at the stroke of a ministerial pen, with minimal or no oversight from our elected representatives in Parliament, and at the whim of the Government and its advisers alone.
It is therefore urgent that the Public Health (Control of Disease) Act 1984 is amended or repealed – not because that will necessarily restrict the Government’s ability to put in place the kind of restrictions that it has, but because it will force it to do so through creating new Acts of Parliament which can be properly scrutinised and voted on by MPs. The current situation, in which ministers just create restrictions and impose them and then, if they’re feeling generous, allow MPs to vote on them months later, is intolerable in a parliamentary democracy – which is still what the U.K. purports to be. In a parliamentary democracy, governments do not rule through executive fiat, but with the consent of the legislature. There is a good reason for this, which is that the composition of the legislature ultimately derives from the votes of the people, while the Government does not.
Sadly, my suspicion is that a significant proportion of MPs would rather prefer the current state of affairs to continue, because it means they don’t have to get their hands dirty passing distasteful legislation – Government ministers are doing it instead. It is therefore unlikely they would vote to repeal the 1984 Act. Convincing parliamentarians to act in the public interest would not be difficult in an ideal world, but depressingly we don’t live in one. I don’t think the Covid Recovery Group will have much success.