The government has just released possibly the most worrying part of its new coronavirus plan. Because it’s planning to change the way we all have to live our lives. It’s doing this by altering the law. But perhaps most terrifying is the possibility that, if the Tories have their way, much of this will permanently erode our most basic of rights.
Coronavirus: updating the law
On Tuesday 17 March, the government published the content of its emergency coronavirus legislation. It had previously announced on 8 March that it would be doing this. Previously, the government introduced extra laws for the NHS. As a House of Lords report said, the new laws:
give health professionals the power to detain patients with Covid-19 for the specific purposes of screening and assessment, or to isolate them for a period of time. The regulations also empower police constables to detain people suspected of having the virus. The Government has stated that the regulations are intended to apply to people who attempt to ‘leave supported isolation before the current quarantine period of 14 days is complete’.
- Getting more staff into the health and social care sector.
- Making these people’s jobs easier.
- “Containing and slowing” the spread of the new coronavirus (Covid-19).
- Dealing with deaths.
- “Supporting” the public.
But the devil is in the detail. And it’s also in the intricacies of the legislation.
There has never in my lifetime been a law that so encroached on our civil liberties and basic rights as the Coronavirus Bill, scheduled to become law by end of month. It is all aimed at keeping us safe. But the transfer of unchallengeable power to the state for two years is… huge. It covers everything from burials, to holding those who threaten national security for longer, to closing borders, to detaining those with mental health issues, to empowering the police to quarantine those with the virus, and much more. This is… wartime stuff.
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Much of the bill is about freeing up people and resources to either deal with the outbreak or support the public through it. For example, it will:
- Allow retired medical professionals and social workers who have recently left their jobs to return to frontline work.
- Give home secretary Priti Patel the power to close ports and airports “if Border Force staff shortages result in a real and significant threat to the UK’s border security”.
But it’s the government’s plans for other areas of life which are exceptionally drastic.
The bill will change the following around mental health care and support:
- It will now only take one doctor’s approval to have a person sectioned (detained) under the Mental Health Act. Previously two doctors had to agree to this course of action. This protected people from biased, incorrect, negligent, or unfair decisions.
- Time limits on detaining people in a mental health setting will be removed. Currently, medical professionals can detain people for up to 6 months at first, depending on circumstance. This will now be open-ended, meaning if you’re in psychological distress you can be locked up indefinitely.
Under the bill, the following will now happen:
- The NHS will no longer have to provide care and treatment plans for people leaving hospital. This will effectively dump patients back into society with no after-care.
- The rules and standards for social care for older, learning disabled, and other people will be relaxed. This means councils can reduce the service and support they provide to vulnerable people. It could leave countless people, reliant on support, without it.
- Councils will not have to do new care plans for older, learning disabled, and other people who need new care. This includes “looked after” and vulnerable children. It means countless vulnerable people could get no support at all.
The bill allows the following for education:
- Increasing class sizes.
- Ignoring standards (including quality and nutritional value) of school meals.
- Reducing the standard of support teachers give to children with special education needs (SEN).
The legal system
The bill will let:
- Judges reduce adjournments in trials. In practice, this may mean defendants do not have the chance to present their case fully (for example, if a witness for them does not show up at court). It could turn the legal system into “kangaroo courts“, where judges push through trials without using all the evidence.
- Courts and other authorities detain people considered a national security threat for longer.
The virus itself
Under the bill, the government can:
restrict or prohibit events and gatherings during the pandemic in any place, vehicle, train, vessel or aircraft, any movable structure and any offshore installation and, where necessary, to close premises
The bill will allow:
- A death certificate to be signed by people other than a coroner. Also, a coroner will not have to be involved in an unexplained, suspicious or other unusual death unless a medical professional expressly thinks it’s necessary.
- Any deaths due to coronavirus will not need to have a jury-led inquest. This goes against the Coroners and Justice Act 2009, as coronavirus would be classed as a ‘notifiable disease’.
The law will last 2 years.
Government must justify this length given the severity of the measures, which will interfere with the everyday lives of people in the UK. A shorter duration with a sunset clause would ensure the powers are strictly temporary & promptly reviewed.
It’s right that Government takes rapid & robust action, but good laws are rarely made in haste & rights are too often the casualty of crisis.
The Opposition & civil society have important roles to play in scrutinising emergency powers to protect both public health & human rights
But what Big Brother Watch fails to address is whether the powers in the bill will actually last two years; or whether the Tories will merely keep these existing power in law permanently. Because the way the legislation is being passed, they have the power to do this.
The Canary has assessed the proposed legislation. The government has made no announcement on the technicalities of how it will pass the new laws. But the emergency coronavirus bill seems to be, in part, what’s known as “secondary legislation“. This is because the government has said:
The development of an effective response to the epidemic requires a number of actions. Some of these involve the use of tools and powers that are set out in statute.
In other words, the government will use pre-existing laws to introduce the new ones. It also said:
The governments of the UK therefore resolved to review and where necessary amend the legislation, to ensure that the UK’s response is consistent and effective.
This means the government will change the pre-existing laws to make them fit with their plans. And if correct, it’s this approach which is most worrying.
Changing the law with no oversight
To change existing laws, the government uses “statutory instruments“. These are where ministers can make changes to the law without parliament agreeing to them. It is probable that these statutory instruments will be passed in the “made affirmative” way. As the House of Lords noted, this means the new laws enter into force immediately. But they also have a set time for parliament to approve them; otherwise, they expire.
The length of time parliament has to approve these emergency law changes depends on what main piece of law the government is changing. It’s usually 28 or 40 days. The likelihood is that the government will push the emergency coronavirus bill through via the Health and Social Care Act. This is because it is designed to allow legislation for public health emergencies.
Emergency legislation can have what’s known as a “sunset clause“. This is where the government writes a timescale into a law, after which it can stop. But as parliament stands now, there is nothing to stop these laws being made permanent. This is because, at the end of a sunset clause, parliament can debate whether to keep the new laws. Given the Tories’ huge majority, if they wanted to keep the emergency coronavirus bill and everything in it as law, nothing and no one could stand in their way.
‘A dangerous precedent’?
According to Big Brother Watch, Labour has said it will not seek a vote on the emergency coronavirus bill. But the party has not released its official position or response to the bill, yet. Meanwhile, Liberty said in a statement for The Canary:
We’re facing a public health crisis like never before and in times of national upheaval, it’s essential we remain vigilant to any watering down of rights or overbearing restrictions on civil liberties. Not only would such an approach negatively impact those of us who are most at risk, it sets a dangerous precedent. We must not allow the hollowing out of human rights to become the go-to for the Government when it’s in a crisis.
The changes they are suggesting are not tweaks, they are a drastic reimagining of state powers. These include greater powers of police detention for all of us, and for those of us who have mental health issues, or rely on health and social care, there’s a move to lower standards and cancel vital safeguards.
Substantial changes must come with a solid commitment that these measures will be regularly scrutinised, that there is a clear and guaranteed time limit and that they will be used proportionately.
Until the government publishes the full details of how it will pass the emergency laws, we will not know the full potential consequences. But given the Tories’ eagerness to withdraw the UK from EU human rights legislation, anything is possible. Furthermore, these proposed powers could have far-reaching implications beyond coronavirus. For example, the speeding up of Magistrates’ trials would undoubtedly save the government money in the long-run, as would increasing school class sizes. The banning of public gatherings could well be used in the future to stop protests and meetings the government doesn’t approve of. But it’s the additional powers given to the police and the changes to mental health law which are of most concern.
Much of the emergency coronavirus bill is civil rights infringing in the extreme. Johnson’s authoritarian approach to this may be indicative of a wider plan to clamp down on all our rights. None of this is beyond the realms of possibility. Therefore, while we need to do everything we can to stop coronavirus, we also need to think about what the world after the pandemic looks like. And currently, it’s seeming increasingly Orwellian in nature.
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