In October 2022, the Essex Law School launched the Constitutional and Administrative Justice Initiative (CAJI). This builds on and extends the work of the UK Administrative Justice Institute which was established in 2014 with funding from the Nuffield Foundation to kickstart the expansion of empirical research on administrative justice in the UK. Since 2018, the Institute has been funded by Essex Law School to progress the priorities set out in its Research Roadmap.
Establishing CAJI reflects the importance of connecting research and scholarship on administrative justice with Essex Law School’s broader public law scholarship on constitutional justice, judicial review, comparative public law, constitutional theory, social justice and human rights.
CAJI’s core team
Maurice Sunkin KC (Hon), Professor of Public Law and Socio-Legal Studies, is co-director of CAJI and a member of the team that originally established the UK Administrative Justice Institute.
CAJI also has an advisory group comprising of colleagues from the Essex Law School as well as other departments of the University of Essex and external participants from academia and NGOs.
The importance of constitutional and administrative justice
Constitutional justice concerns matters critical to the relationship between the citizen and the state, including adherence to the principles of supremacy of law, accountability before the law and fairness in its application. At its core, it concerns state protection of our constitutional rights such as liberty, equal protection under the law and procedural due process. This requires decision-makers to respect their constitutional responsibilities: that the legislature legislates, and the executive governs according to established constitutional principles and that both branches are politically and legally accountable. Hence, constitutional justice is often discussed in the context of constitutionalism meaning that in serving the people the legislature and the executive are themselves governed by fundamental rules rooted in the consent of the people.
A commitment to the rule of law and avoidance of arbitrary exercise of power by the executive and those acting on its behalf are vital components of constitutional justice and good government. The decisions of independent courts demand respect and play a vital role in providing redress to those adversely affected by state action, constraining the unlawful exercise of state powers, and safeguarding fundamental constitutional values.
The impact of the European Union and the Council of Europe and its advisory bodies such as the Venice Commission have become key in the globalisation of constitutional justice. This development entails the consolidation of constitutional principles common to their signatories and the maintenance of coherent standards of constitutional rights protection. Recent threats to the independence of the judiciary in several European countries show that we cannot assume that appropriate constitutional standards are easily enforced.
At its core, administrative justice is about ensuring that those delivering public services act justly and make correct decisions and about what can be done when things go wrong. It encompasses matters of everyday importance that affect most of us at some point, such as education, health care housing, immigration, land use planning, social security and taxation.
We are interested in how public services are designed and delivered, how legislation is drafted, how people are consulted about laws and policies, how people can challenge decisions by public bodies, how redress bodies consider those challenges, and how learning from such challenges is used to improve delivery and decision-making in the first place. These matters are of vital importance to society.
Professor Theodore Konstadinides, CAJI co-director and Academic Lead for Public Law, stated:
“The CAJI is a research hub within the Essex Law School that builds on the legacy of the UK Administrative Justice Institute and pays tribute to all the amazing research that colleagues like Andrew Le Sueur and Maurice Sunkin have undertaken in public law and socio-legal studies.
CAJI’s research agenda is ambitious in that it draws on many issues pertaining to the exercise of public authority at all levels with the aim of improving the quality of decision making and access to justice in the UK and at international level.
While it is an active research hub of the Law School, CAJI embraces academics from multiple disciplines and acts as a forum to discuss how we conduct research where the doctrinal meets the empirical.
CAJI is also interested in how academic research can contribute on the ground by advising public bodies and NGOs about pertinent issues of public life and commenting about complex topics in a way that is accessible to the wider public. Questions related to institutional independence, just government, states’ international obligations, modern living environments, provide exciting opportunities for interdisciplinary research and postgraduate research study. Our work dovetails neatly with the University’s research priorities in social deprivation, sustainability and health and wellbeing.
We therefore invite prospective visiting researchers and PhD students to contact us in order to discuss their ideas and potential opportunities for future collaboration.”
As part of this change, UKAJI’s website – available here – will be migrated to a dedicated webpage on Essex Law School’s website. All original content will be protected.
UKAJI also has a Twitter account which will be maintained during this process.
We are delighted to announce the details of a fascinating workshop taking place on 29-30 August 2022 in Molyvos, Greece. This international workshop aims to explore the relationship between freedom and proportionality, bringing together human rights law doctrine and philosophical theorising.
It will do so by pursuing two main themes:
Is there a morally valuable – albeit overridable – freedom to engage in potentially harmful behaviour or should the concept of freedom be inherently limited by the reasonable interests of others?
Is the proportionality test, as applied in human rights law, committed to a particular philosophical conception of freedom? If so, is that conception morally justified?
Underlying these abstract questions are urgent issues of practice about the balance between the individual and society, the correct interpretation and application of rights, and the role of courts and other state institutions in their protection. For example, the relationship between freedom and proportionality is at the heart of controversies over the lawfulness of government measures aiming to tackle the COVID-19 pandemic such as restrictions of movement and economic activity and compulsory vaccinations.
The issue is typically framed in terms of the proportionality between the public benefit of these measures and the intensity of the interference with human rights. However, for many scholars, this framing is deeply problematic. It assumes that such restrictions amount to losses of valuable rights, which must be offset by an overriding public benefit. But, so the argument goes, we do not have even a prima facie right to be a public threat e.g. by carrying a contagious virus. To think otherwise is to assume a highly individualistic and antisocial notion of personal freedom. And yet arguably this assumption underpins the proportionality doctrine, inasmuch as claimants must clear a relatively easy hurdle to establish that a restriction amounts to a prima facie interference with their human rights. As a result, almost any activity or personal preference, however harmful, triggers a proportionality assessment.
By ensuring that proportionality best reflects moral notions of freedom, we vindicate it and guide its use towards the optimal results. The workshop has this dual aim, to elucidate legal doctrine through sustained theoretical scrutiny and improve it, so that it can successfully address contemporary challenges in human rights law.
The workshop is hybrid. Most of the speakers will meet in Molyvos (Greece), the hometown of Stavros Tsakyrakis, who spearheaded the aforementioned line of attack against proportionality. But the proceedings will also be accessible via a Zoom webinar that is open to everyone. The workshop’s programme and registration details can be found below:
Prof. Daly (Faculty of Law, University of Ottawa) talked about the fresh framework his book offers for understanding the core features of contemporary administrative law and distinguished guests commented on the book’s contribution:
Prof. John Bell (Emeritus Professor of Law, University of Cambridge) identified several questions that a comparative lawyer interested in European legal systems might have in reading this book.
Prof. Peter Cane (Senior Research Fellow of Christ’s College, University of Cambridge and Emeritus Professor, Australian National University College of Law) remarked that ‘divergence is just as important as convergence when it comes to either explaining or understanding administrative law across the common law world’. He pointed out that Prof. Daly has done an excellent job in tracing the convergences.
Prof. Giacinto della Cananea (Bocconi University) described Prof. Daly’s work as ‘a healthy antidote to the recurring view that administrative law is no more than a deviation from the (supposedly) orthodox rules of law’. He made a series of useful points on Prof. Daly’s comparative approach to Common Law jurisdictions and continental European legal systems.
Prof. Daly’s response to the comments of the esteemed scholars can be accessed on the webpage of the British Association of Comparative Law here.
The meeting, which will be held on 11-12 November 2021, encompasses several events, including the Research Forum, which features cutting-edge international law scholarship by more than 70 authors and is open to the public. Registration details are available here.
Marija’s presentation is titled ‘Redesigning Slavery Through Law: A Play in Four Acts’ and will be hosted by the Reimagining International Law panel, chaired by Professor Noah B. Novogrodsky of the University of Wyoming College of Law.
Marija’s paper investigates, in particular, the relationship between the law and slavery including ‘modern slavery’. It argues that just as states in the Global North have maintained ‘traditional’ slavery using law as a primary tool, so have they substituted the old with ‘modern slavery’ to accommodate and fulfil the needs of the present-day global economic order and political reality. This contradicts their projected image of the champions of the abolitionist movement and the recent global action against ‘modern slavery’.
This work is situated within Marija’s broader research on modern slavery and human trafficking, which explores how various aspects of law both contribute to and work to suppress these practices. It builds on her doctoral work, which is further developed in the book on State Responsibility for ‘Modern Slavery’ in Human Rights Law: A Right Not to be Trafficked forthcoming with the Oxford University Press in 2022.
In that judgment, the GFCC for the first time declared a judgment of the Court of Justice of the European Union (CJEU) to be ultra vires. As the symposium in I•CON demonstrates, this decision has come in for sustained attack from many quarters, and defences of it are partial at best.
Most significantly, critics decry the PSPP judgment of the GFCC for giving succour to the authoritarian governments of particular Member States, most notably Hungary and Poland: if Germany can defy the primacy of EU law, then surely every other Member State can too?
In this context, Dr. Flynn analyses PSPP in the light of previous national court decisions (Italian, Danish, Czech, and Hungarian) that challenged the CJEU’s conception of the primacy of EU law, and argues that it cannot, on its own, be used to justify the imposition or adoption of an absolutist conception of the primacy of EU law.
Instead, we can reconceive national court objection to the CJEU’s conception of primacy as a form of ‘loyal opposition’, analogous to the political concept, where mere opposition to the tendencies and policies of the current government must not be regarded as being somehow disloyal or unspeakable.
The theory of constitutional pluralism, which conceptualises the relationship between EU constitutional law and that of the Member States as being heterarchical rather than hierarchical, must therefore not be regarded as being inherently dangerous, or as an expression of some kind of retrograde ‘sovereigntism’.
Rather, we must pay close attention to the reasoning and justification of any given instance of national disapplication of EU law. This is particularly so in the context of a Union that is showing itself increasingly ill-equipped to handle the rise of authoritarianism in the Member States: just as not all expressions of national constitutional primacy are wicked, not all expressions of Union primacy are good.
Dr. Flynn instead proposes a ‘legitimacy test’, whereby we can learn to distinguish principled, reasoned, ‘loyal’ opposition in the EU constitutional space from unprincipled, unreasoned, ‘disloyal’ constitutional backsliding.
The full citation of Dr. Flynn’s new article is: Tom Flynn, Constitutional pluralism and loyal opposition, International Journal of Constitutional Law, Volume 19, Issue 1, January 2021, Pages 241–268, https://doi.org/10.1093/icon/moab035.
Prof. Theodore Konstadinides and Dr. Anastasia Karatzia acted as the UK national rapporteurs for theFédération Internationale Pour Le Droit Européen (FIDE) Congress 2020, one of the most significant conferences on EU law which brings together academics, advocates, judges and representatives from the EU institutions.
The Congress is an occasion to exchange views and expertise on EU law. Prof. Konstadinides and Dr. Karatzia were selected as the national rapporteurs for one of the three topics of the conference: National Courts and the Enforcement of EU Law: The Pivotal Role of National Courts in the EU Legal Order.
In their report, the authors explore pertinent questions about the interaction between UK national courts and the Court of Justice of the European Union concerning issues such as the preliminary reference procedure, the principle of supremacy, presumption of mutual trust, and the judicial independence of national courts and tribunals.
The Congress Publications, which include Prof. Konstadinides’ and Dr. Karatzia’s report, were published in July 2020 and are available digitally as Open Access resource here.
Note: the hyperlinks to the relevant webpages are in their original languages – French and German.
On 13 May 2020, the French Parliament passed a new bill geared to combatting online hate speech. Disputed from the outset, the bill was, on 18 June 2020, subsequently ruled by the Conseil constitutionnel – the Court that reviews legislation to ensure compliance with the French Constitution – to be partially, even largely, unconstitutional. Indeed, the ruling effectively quashed seven of the bill’s provisions, and made substantial amendments to several others, notably paragraphs I and II of Article 1. Small wonder that Bruno Retailleau, Vendéan Senator and president of ‘Les Républicains’, spoke of the ruling – in fitting French manner – as having “totally decapitated” the bill.
What is afoot here? And what does this mean for the French government’s efforts to regulate online content?
What was in the Original Bill?
Before reviewing the Conseil constitutionnel ruling, let us first consider the rationale and content of the original bill.
Named for its main sponsor, MP Laetitia Avia of Emmanuel Macron’s ‘La République en Marche’ party, the law was largely inspired by the German Netzwerkdurchsetzungsgesetz (NetzDG), which came into effect in October 2018 and which foresees significant fines for online platforms that do not remove “manifestly illicit” content within a stipulated timeframe of 24 hours after it being reported.
The ‘Loi Avia’ was designed in the light of the NetzDG to update the current legislative framework supplied by the Law on Confidence in the Digital Economy (Loi pour la confiance dans l’économie numérique, LCEN) of 2004, notably by reinforcing the contribution of digital providers and platforms to the struggle against online hate. Its central provision, set out in Article 1, was to command online platforms falling under the purview of the bill “to render inaccessible, within 24 hours of notification by one or more persons, any content manifestly constituting of the offences” stipulated in this and other laws – that is, content that violates France’s hate speech provisions. According to the bill, platforms were also obliged to adopt “appropriate resources to prevent the redistribution” of content deemed manifestly illegal (article 2). The scope of the law was to extend to “operators of online platforms […] offering an online public communication service based on connecting multiple parties for the purpose of sharing public content or based on classifying or referencing content by means of computer algorithms, which is offered or placed online by third parties, where this activity on French territory exceeds a threshold, determined by decree” (article 1). Where, precisely, this threshold lay was to be decided subsequently. Notably, the bill covered social media platforms and search engines, but not internet service providers. Failure to comply with the new law would incur a criminal fine of up to 250’000 euros for individuals and 1’250’000 euros for corporations. In addition, an administrative penalty of up to 20 million euros or 4% of a company’s global annual turnover could be imposed for “serious and recurrent” failures.
The Process of Adoption
It is worth reflecting for a moment on the particular process by which the bill was first adopted. In May 2019, the Government decided to apply the ‘procedure accelerée’ (accelerated procedure) foreseen in Article 45 of the French Constitution. This decrees that, after a reading by each of the two chambers of Parliament – the Assemblée nationale (roughly equivalent to the House of Commons) and the Sénat (House of Lords) – and in the case of no agreement being reached on a common text, the Prime Minister or the Presidents of the two Houses can convene a joint committee, comprising equal members from each House, to propose a compromise text on debated issues. This is what occurred here: the two parliamentary chambers could not find an accord on the text of the bill and a commission was constituted. This failed, however, to yield a compromise text acceptable to both sides, and so the ‘normal’ legislative procedure resumed – the original text as amended and adopted by the Sénat went back to the Assemblée nationale, which made its own modifications, and this new text was then returned to the Sénat for further amendment.
As the process stalled in this back and forth between the chambers, the Government eventually decided to give a final reading before the Assemblée nationale – again in line with constitutional provisions – and the bill was adopted in May 2020. All of which is to say that, as a consequence of such wrangling, the bill was passed only by one of the two parliamentary chambers, albeit it the more ‘democratic’ one. Given the nature of the bill, and the current “state of health emergency” in place in France, one can readily question how well- or ill-advised this move was on the part of the Government. What seems clear, though, is that it lent an air of almost inevitability to subsequent challenge and dispute. Following adoption, on 18 May, 60 members of the senate submitted an appeal to the Conseil constitutionnel to contest the constitutionality of the bill.
The Conseil Constitutionnel Ruling
The arguments put forward by the challengers to the bill – and those upheld by the Conseil constitutionnel – were, unsurprisingly, connected to the matter of legitimate and illegitimate restrictions to freedom of expression. Unsurprising, as these concerns were already at the forefront of jurisprudential and public debates and discussions during the bill’s drafting.
Citing the 1789 “Declaration of the Rights of Man and of the Citizen”, the Conseil constitutionnel determined in its ruling that both Paragraph 1 (demanding the removal of content relating to terrorism and child pornography within the hour) and Paragraph 2 (requiring the removal of hateful content within 24 hours) of Article 1 constitute an “infringement on the exercise of freedom of expression and communication that is unnecessary, inappropriate and disproportionate”. The follow-through from this determination on Article 1 was to render an entire raft of subsequent provisions unconstitutional. The removal window in both scenarios was, the council held, “particularly brief”, and the severity of the proposed sanctions would “only incite online platform operators to remove flagged content, whether obviously unlawful or not,” especially in the absence of specific cause that exonerates from responsibility. With no judicial intervention foreseen, it would be for platform administrators (as private actors) to determine whether or not particular content is unlawful – a situation that would, in the verdict of the council, likely encourage an excessively censorious approach and the removal of materials that are in fact lawful.
What remains of the bill after the ruling is modest. Perhaps most notable is the acceptance of a proposal to create an official online hate speech watchdog (article 16). While by no means inconsequential, this and other minor provisions represent a meagre return when set in the context of the bill’s ambitious aim to overhaul the legislative landscape for dealing with online hate speech.
And Now?
So where does this leave the government’s efforts to police online content? Clearly, this is a substantial setback. While the bill was officially enacted, the ruling of the council stripped it of almost all meaningful impact. If not quite in tatters, the government’s strategy is tarnished, and there is obvious need for a rethink. Not that there is any sign of submission – in a statement following the ruling, Laetitia Avia vowed not to give up the fight, and asserted that the judgement offered a “roadmap to improve a plan that we knew to be unprecedented and therefore perfectible.” Thus the show will go on. But the implications of the ruling should not be downplayed. These may also extend beyond national borders – the government had hoped that the new bill might provide a template for the European Commission’s Digital Services Act, scheduled to be put forward by the end of the year. The Commission said that it “took note” of the council’s ruling.
Both of itself and as part of France’s extended efforts to regulate speech across diverse contexts, this recent chapter is variously revealing of the idiosyncrasies of our jurisprudence and constitutional arrangements, of the relationship the French state maintains with its citizens, and of its approach to balancing free speech with anti-discrimination concerns and the fight against harmful content (which differs markedly from the US, for example). It has also proved another flashpoint in ongoing debates on possible limits to freedom of expression and the dilemma of hate speech. That this is a fraught and thorny issue barely needs restating. Nor does its importance. The question of where to set the line between permissible and impermissible speech is contentious, daunting and potentially confusing – most reflective minds would probably admit to being pulled in different directions at different times and in different contexts. Just as we bristle at attempts to muzzle freedom of expression, so we do at the harms caused by hateful speech. Marking that boundary was, is, and will likely always remain, a tightrope walk. How the French government opts to move forward in the coming months will be an interesting watch.
Liverpool Street Station, London; photo by Ben Garratt
Lee Marsons, PhD Candidate and Graduate Teaching Assistant, School of Law, University of Essex
As part of my compilation of resources on Covid-19 for the UK Administrative Justice Institute (UKAJI), I have been paying close attention to the publication of delegated legislation throughout this crisis. My main sources for this have been legislation.gov.uk, the Gazette, and the gov.uk website. One of my growing concerns has been the number of times where I have observed a delay between new regulations being signed by a Minister and coming into force, and the regulations becoming publicly available on any of these websites.
The risk with this delay is that a Minister has created a new criminal offence – or at least has modified an offence created by previous regulations – without a member of the public being able to discern the offence’s specifics so that they may remain within the law. This concern is underlined when we realise that, since many of these regulations have been authorised by Ministers without recourse to Parliament in the immediate term, not even the elected representatives of the public may have knowledge of these offences so as to advise their constituents accordingly. As yet, I am unaware of an actual case, but with 15,715 fixed penalty notices having been issued as of 8 June 2020, there remains the real risk that a person has been, or will be, fined and prosecuted by the police where that person has had no ability to specifically discern the scope and contents of the regulation under which they have been sanctioned. Whatever theory of the rule of law one prefers, this state of affairs is troubling for those concerned with legal certainty for the individual vis-à-vis the punitive and coercive powers of the executive.
“now debating the coronavirus No. 3 regulations which…have in some cases already been superseded by the No. 4 regulations, which were laid before the House on Friday and in some cases came into force almost immediately afterwards, with some regulations coming into force on Saturday.”
This was a concern because:
“the regulations are actually quite complicated and not everybody will understand them in great detail, [and] because they are the law a breach of them is actually an offence. We are creating criminal offences here, and when we do that it is important that we let people know what the offence is and how they can make sure that they remain within the law. I suspect that if we were to do a survey among Members of Parliament, even they probably would not get all the regulations correct. They are quite difficult to follow, given that they start off with a set of regulations that is then amended over and over again. It is quite a challenge to work out what the current legal position is.”
Such are the risks to legal certainty in situations, like now, where major restrictions on ordinary liberties are achieved via statutory instruments which, while coming into force and creating offences immediately upon ministerial signature, may not be disseminated to the public – and are certainly not approved by Parliament – until some time later.
Protections in England, Wales, and Scotland
In England, Wales, and Scotland, there is at least the possibility that a person prosecuted in these circumstances would have a defence under s. 3(2) of the Statutory Instruments Act 1946, which reads that:
“In any proceedings against any person for an offence consisting of a contravention of any…statutory instrument, it shall be a defence to prove that the instrument had not been issued by or under the authority of His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.”
In the few cases to have considered s. 3(2), the provision is understood to provide a defence where there has been no act of publication or dissemination of the statutory instrument after its approval. As Streatfield J observed in R v Sheer Metalcraft [1954] 1 QB 586:
“There does not appear to be any definition of what is meant by “issue,” but presumably it does mean…that the making of an instrument is one thing and the issue of it is another. If it is made it can be contravened; if it has not been issued that provides a defence to a person charged with its contravention. It is then upon the Crown to prove that, although it has not been issued, reasonable steps have been taken for the purpose of bringing the instrument to the notice of the public or persons likely to be affected by it.”
Similar views were expressed by Lord Goddard in Simmonds v Newell [1953] 1 WLR 826, which concerned a statutory instrument which had been approved by a Minister but not made entirely publicly available:
“The Solicitor-General agrees that if this matter is not contained in the instrument, in order that people may know whether they are committing offences or not, it must be shown that proper steps have been taken to bring it to the notice of people in the trade that these prices exist. That is certainly a very reasonable attitude for the Solicitor-General to take up, because it is not desirable, in criminal matters, that people should be prosecuted for breaches of orders unless the orders can fairly be said to be known to the public. It is clear from the case stated that there never was evidence before the justices that the steps that the section requires to be proved by the prosecution had ever been taken and that the defendants were therefore entitled to rely on that as a defence.”
3) In proceedings against a person for an offence consisting of a contravention of a Scottish statutory instrument, it is a defence to prove that, at the date of the alleged contravention, the instrument had not been published by the Queen’s Printer.
(4) The defence mentioned in subsection (3) is not available if it is proved that reasonable steps had been taken before that date by or on behalf of the responsible authority to bring the purport of the instrument to the notice of –
(a) the public,
(b) persons likely to be affected by it, or
(c) the person charged.
Therefore, it seems a reasonable argument that where a Minister in England, Wales, and Scotland has created or modified an offence by statutory instrument and this information has not been made available to the public – perhaps, as I am considering here, because of a delay in disseminating the instrument – a person would have a defence against prosecution under these provisions during that period where the information was unknown.
However, it is unlikely to be as simple as this in reality. One complicating feature of these provisions is their demand that the purport of the instrument is brought to the notice of the public, rather than the instrument itself. This raises the question as to whether the daily broadcast press conferences attended by Secretaries of State, media interviews given by Ministers, and the guidance documents produced by Departments would make the purport of the instrument sufficiently clear, though the instrument itself is not yet public. It seems to me that there is no abstract answer to this question, it would be a matter of fact and degree in the circumstances of the case and would depend on whether Ministers have announced the major features of the offence to the public, perhaps alongside an indication of possible sanctions. Consequently, while these provisions provide no absolute bar against a prosecution in circumstances where a statutory instrument had yet to be published, it at least provides the possibility of a defence depending on the extent of the information given by Ministers about the offence through other channels, such as television or guidance documents.
Protections in Northern Ireland
In Northern Ireland the position is substantially more complex. The defence under s. 3(2) would not be available because, but for in specific circumstances, s. 13 of the 1946 Act declares that the Act does not extend to Northern Ireland. Nor is it obvious that Northern Ireland has an equivalent provision to s. 3(2) elsewhere. The best that I have discovered is Article 5(2)(b) of the Statutory Rules (Northern Ireland) Order 1979, which requires a Minister, ‘as soon as may be after the making of those rules to arrange for the publication of those rules or of notice of the making of those rules in the Belfast Gazette’. This is different to s. 3(2) because Article 5(2)(b) provides no actual defence to a prosecution, only an obligation on a Minister making those rules to publish them in a particular place.
Article 5(2)(c) provides that some statutory rules may be exempt from the requirements of Article 5(2)(b), namely those listed in Schedule 3 of the Order. These include the Public Health Acts Amendment Act 1907 and the Public Health (Ireland) Act 1878, but Schedule 3 does not mention the Public Health Act (Northern Ireland) 1967 nor the Coronavirus Act 2020, the parent legislation for most of the statutory rules made. Alternatively, s.8 of Schedule 3 also exempts statutory rules of a temporary nature which in the opinion of the Minister are likely to cease to be in force within three months after they are made. It is conceivable that a Minister might think this, but in my view that would be a major – and problematic – assumption to make in the coronavirus context. Therefore, without more, I assume that there is a requirement to make public in the Gazette any statutory rule related to coronavirus.
Where this has not been complied with, though there is no statutory defence, Lim Chin Aik v R [1963] AC 160 might be a helpful authority for a defence at common law. In this case, Lord Evershed, sitting in the Privy Council, commented that the traditional maxim ignorantia juris non excusat – ignorance of the law is no excuse – could not apply where there was no possibility for a person to carry out inquiries as to what the law affecting them was. Nevertheless, I am not certain that this is a conclusive authority for at least two reasons. First, these comments were obiter given that the main issue in the case was the mens rea of a Singaporean immigration offence. And second, there is no direct analogy to coronavirus rules because Lim Chin Aik concerned an order directed against a specific person that was not disclosed to that individual, rather than a general offence applying to all persons.
In addition, despite there being an obligation for a Northern Irish Minister to publish the relevant statutory rules, I am not convinced that a failure to do so would render a statutory rule ultra vires and, therefore, any relevant offence made void. There is no authority for this proposition from the courts (Westlaw, at least, identifies no cases at all on Article 5(2)(b)) or in the Order itself. As such, I can see no particular reason to be confident either of a common law defence or of the statutory rule being ultra vires.
All that said, the Human Rights Act 1998 may assist. In the qualified rights contained in Articles 8 to 11 of Schedule 1, any restriction on those rights must be ‘prescribed by law’. There is a plausible argument that a statutory rule that had not been published but had led to a conviction would not be ‘prescribed by law’ and, therefore, would violate one of the relevant qualified rights. I am assuming that since being prosecuted or fined for breach of the regulations may restrict a person’s ordinary movement and assembly, worship, business activities, family contact, and other social conduct, there may well be at least a modest interference with the rights to respect for private and family life (Article 8), freedom of assembly, association, and protest (Articles 10 and 11), and freedom of religion (Article 9).
In Huvig v France (1990) 12 EHRR 528, the European Court of Human Rights identified four questions from earlier cases which provide a test for deciding if any given interference with a right is ‘prescribed by law’:
Does the domestic legal system sanction the infraction?
Is the relevant legal provision accessible to the individual?
Is the legal provision sufficiently precise to enable the individual reasonably to foresee the consequences which a given action may entail?
Does the law provide adequate safeguards against arbitrary interference with the respective substantive rights?
The most relevant question here is question two – is the relevant legal provision accessible to the individual? In Sunday Times v United Kingdom (1979) 2 EHRR 245, the European Court held that accessibility means that the individual, ‘must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case’. As an example, in Silver v United Kingdom [1983] 5 EHRR 347, the Court held that the Standing Orders and Circular Instructions which the Home Secretary issued to prison governors failed the accessibility test since they were not published, were not available to prisoners, nor were their contents explained in cell cards.
For these reasons, in circumstances where a Northern Irish statutory rule which had yet to be published led to a criminal conviction, it is likely that there would be a violation of one or more of the qualified rights under Articles 8-11 and, on that basis, the conviction would be unlawful given that under s. 6 of the 1998 Act, public authorities have an obligation to act compatibly with those rights. Nevertheless, where Northern Irish Ministers had not published the rules but had informed the public through other means – such as press conferences, interviews, and guidance – a Minister could still reasonably argue that, despite the failure to publish, the individual was still aware in principle of the relevant offence through other channels.
In sum, there is no easy answer to the concerns raised in this piece. There is no authority for any absolute prohibition or bar on prosecution in circumstances where a coronavirus related statutory instrument created or modified an offence, that offence was enforced, but the instrument had not yet been made available to the public. Nevertheless, at least in England, Scotland, and Wales, a person is likely to have a defence under s. 3(2) of the Statutory Instruments Act 1946 or under s. 41(3)-(4) of the Interpretation and Legislative Reform (Scotland) Act 2010 against such a prosecution. In Northern Ireland, where there is no equivalent provision, a person may still be able to use the Human Rights Act 1998 as a ‘shield’ against such a prosecution, on the basis that it would violate one of the qualified rights under Articles 8 to 11 to suffer a conviction in these circumstances. Hopefully these debates will never have to be tested in the courts because no person has been fined or prosecuted in these circumstances, but it is not obvious to me that this is so and legal advisors to those convicted under coronavirus regulations ought to bear this complication in mind.
The author would like to thank Grainne McKeever, Conor McCormick, Brice Dickson, James Chalmers, Benjamin Lewis, and Rich Greenhill for their helpful comments on this issue. Incidentally, if any readers are aware of a potential Northern Irish equivalent to s. 3(2) of the Statutory Instruments Act 1946, please do contact the author.
This post was first published on the UKAJI blog and is reproduced here with permission and thanks.
The 5th of May 2020 will be remembered as a strange day for EU law and German constitutionalism. The German Constitutional Court upheld the constitutional complaints by several groups of individuals against the European Central Bank’s Public Sector Purchase Programme (PSPP). As explained in yesterday’s post by Thomas Horsley, the PSPP set up a framework that enabled the ECB to purchase government bonds or other marketable debt securities issued by the governments of Member States in the eurozone with a view to return to an appropriate level of inflation (below 2 per cent). The Constitutional Court found that the PSPP carried considerable impact on the fiscal framework in the Member States and the banking sector in general. As such, the Court concluded that both the German Government and Parliament violated the complainants’ rights under the Constitution by failing to monitor the European Central Bank’s (ECB) mandate, in particular as regards the adoption and implementation of the PSPP.
Most importantly perhaps, the Constitutional Court held that it was not bound by the preliminary ruling of the CJEU (Article 267 TFEU) on the same issue (in Weiss discussed below). Its reasoning was centred on the Luxembourg Court’s alleged failure to properly apply the proportionality principle under the Treaty (Article 5 (1) and (4) TEU). This failure was due to a lack of assessment of the possible economic policy implications of the purchase program of public debt and lack of consideration of the availability of less restrictive means. Consequently, the Constitutional Court held that the CJEU acted ultra vires.
Two immediate reactions to the judgment
The judgment reaches beyond the practical implications of policing the boundaries between monetary and economic policies. Its impact is twofold.
First, on an institutional level, questioning the monetary mandate of the European Central Bank (ECB) as a sui generis institution operating within the EU institutional system may destabilise the high degree of independence enjoyed by the ECB in the financial crisis related cases heard before the CJEU and national courts. As feared by Maduro, the ripple effect of the judgment may therefore reach beyond the credibility of the PSPP. It may further endanger the coming into fruition of similar ECB ventures such as its recent response to Covid-19 through its new Pandemic Emergency Purchase Programme (PEPP). New cases may emerge in Germany against this and future financial assistance decisions questioning the economic side effects of the ECB’s own programmes.
Second, constitutionally the judgment poses questions of an existential nature in the midst of the Covid-19 crisis concerning the balancing between the authority and primacy of EU law, and national competences and sovereignty beyond budget matters. It also questions the current stability of the preliminary reference procedure under Article 267 TFEU as the main communication channel fostering dialogue between the national and EU legal orders. This post will consider the judgment’s constitutional implications by criticising what the judgment means for the limits of the transfer of sovereign powers to the EU, and for judicial dialogue between national courts and the CJEU, but also between the three branches of government in Germany.
Constitutional confrontations prior to the PSPP judgment
While the judgment has attracted a great deal of attention in the blogosphere, little is mentioned of the fact that the PSPP judgment is not the first instance where the German Constitutional Court has challenged the validity of the decisions of the ECB. A few years back the same Court established that its powers of review may extend outside the context of Treaty revision or secondary law implementation qua an act of an EU institution, such as the ECB, that has its own legal personality and decision-making bodies. In the seminal Gauweiler judgment of 2015 (the first ever preliminary reference from the German Constitutional Court to the CJEU) the German Constitutional Court contested the validity of the Decision of the Governing Council of the ECB on features of the ECB’s government bond buying programme (Outright Monetary Transactions – OMT) arguing that it violates EU rules on monetary policy and the Protocol on the Statute of the European System of Central Banks and of the ECB. Its reasoning was purely constructed on legal grounds – i.e. whether the OMT programme marked an important shift in the delimitation of competence to the Member States’ detriment.
In its OMT judgment, the BVerfG placed the ECB’s Decision under the scrutiny of German constitutional law due to the fact that it operated without any express judicial or parliamentary approval. It was in this regard that its constitutional identity review power kicked in as a means to reinstate the default constitutional position that fiscal policy is only to be exercised according to the principles of representation and of distribution of powers. Equally, the Bundestag was responsible for the overall budgetary responsibility. As such, the Constitutional Court’s reasoning was predicated on the condition that the balance of competence would only be restored once the CJEU provided assurances that the OMT Programme merely consists of a supporting mechanism for the EU economic policies and not one concerning the stability of the EMU. Indeed, the CJEU provided such assurances and, despite its reservations, the Constitutional Court nodded to its satisfaction.
Shortly after Gauweiler, the German Constitutional Court made another request for a preliminary ruling in Weiss, this time on the validity of the ECB’s Decision on PSPP and its subsequent amendments as a means to maintain price stability. The applicants in Weiss asked similar questions to Gauweiler in relation to ECB’s monetary mandate and its potential ultra vires acts by venturing into economic policy reserved by the Member States. The CJEU rejected this claim and ruled in 2018 that the PSPP is a proportionate measure for mitigating the risks to the outlook on price developments and that it falls within the ambit of the ECB’s competences. It is worth mentioning that compared to OMT, the CJEU’s judgment in Weiss received little wider publicity, perhaps because one could almost predict another positive nod from the German Constitutional Court.
The constitutional dimension of the PSPP judgment
This brings us to the current judgment of the Constitutional Court of 5 May 2020 vis-a-vis the refusal of the German Constitutional Court to implement the above judgment of the CJEU. This refusal was based on the grounds that the CJEU manifestly failed to give consideration to the principle of proportionality which applies under the Treaty to the division of competences between the EU and national legal orders (Article 5 (1) and (4) TEU). The judgment is reminiscent of the scenario that the Constitutional Court has been rehearsing for years (since its Maastricht decision in 1993) in its collective mind: that when push comes to shove it will be competent to decide whether an act of EU secondary law is ultra vires. It is a scenario that we have been teaching our students with the caveat that this had never materialised in Germany. As mentioned elsewhere, our syllabi might have to be revised for next year, given that the judgment signals the first time that the BVerfG directly diverges from the ruling of the CJEU in a case that it has initiated through the preliminary reference procedure (Article 267 TFEU).
But the PSPP judgment goes beyond a declaration of ultra vires of EU secondary legislation. The Constitutional Court extends its ultra vires review to the interpretation of proportionality undertaken by the CJEU as exceeding its mandate as conferred by the Treaty (Article 19 (1) TEU). It confronts the CJEU as acting ultra vires because its standard of review is not conducive to restricting the scope of competences conferred by the Treaty upon the ECB. The Constitutional Court declares that it is the final arbiter and thus not bound by the CJEU’s judgment in Weiss because it does not agree with its reasoning which it describes as ‘simply not comprehensible’ (see for instance paras 116 and 153). By holding that the Weiss judgment exceeded the mandate conferred upon the CJEU, the Constitutional Court disregards the principle that rulings of the CJEU are binding on all national courts. The Constitutional Court also seems to take no notice of Article 344 TFEU which provides that ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided therein’. It both hinders any future communication between the two courts on the matter and oversteps the boundaries of its powers by acting ultra vires itself.
Yet, despite its bravado, the PSPP decision does not provide any assurances that the BVerfG has finally adopted a unified and coherent approach when it comes to exercising its power to impose constitutional locks upon EU competence. A careful review of the Constitutional Court’s previous record of decisions reveals that its constitutional review has been purely theoretical and consisted of a means of getting assurances from both the EU and domestic institutions that the balance of competence between the EU and the Member States has not been transgressed. We cannot, however, overlook the possibility that in the present case this may be a gamble too far for the credibility of the German Constitutional Court. If the Court, for instance, accepts the Bundesbank’s stronger justification for why the ECB program, and decisions implementing it, are proportional the PSPP judgment may be remembered as some of the most scathing satire to scrape across the Karlsruhe courtroom since the days of Lisbon Urteil. There, the Constitutional Court took it upon itself to scrutinise the exercise of EU competences through an intra vires identity review (even when the EU is acting within its bounds of competence) in order to preserve the inviolable core content of Germany’s constitutional identity.
Throughout Germany’s history of EU membership, the Constitutional Court’s ultra vires competence review has been constructed on a ‘so-long-as’ presumption of equivalence of constitutional standards which were never deemed to be deficient at the EU level by the judges of the Constitutional Court. The current decision, however, is different because the same judges placed an additional caveat on the judicial interpretation of EU law by the CJEU. They boldly declare that:
As long as the CJEU applies recognised methodological principles and the decision it renders is not objectively arbitrary from an objective perspective, the Federal Constitutional Court must respect the decision of the CJEU even when it adopts a view against which weighty arguments could be made (para. 112)
Hence there are two important dimensions of the case where the Constitutional Court interferes with the current EU rulebook. On the one hand, the Constitutional Court appears unequivocal about imposing external controls upon the ECB’s economic assessment, seeking more transparency and proportionality as to its measures. It throws the ball aggressively into the Bundesbank’s court hoping that it will bounce in the right direction and strike at the ECB’s headquarters. There is a silver lining to this dimension of the judgment given the growth of the ECB’s competence in recent years. However, the Court’s economic analysis is hardly so convincing as to make a bulletproof argument.
On the other hand, the PSPP judgment establishes an ultra vires test that is insensitive to the CJEU’s jurisdiction conferred under the Treaty. There is a surprise element here given that the CJEU has been consistent in its last two preliminary rulings about proportionality. Of course, one can argue that the CJEU’s proportionality control over the acts of the ECB has always been based on the wrong footing. But for the above reasons, unlike the Constitutional Court’s previous theoretical Kompetenz-Kompetenz challenges, the current decision seems to allow little scope for putting the reverse gear in place (unless the Court is prepared to accept any proportionality justification). But even if the judgment is about principle and the Court runs with just about any Bundesbank proportionality justification thrown at it, some damage is too severe to handle on its own without causing further harm to Germany’s EU membership.
By disregarding the CJEU’s exclusive powers of treaty interpretation the Constitutional Court endangers Germany’s duty of sincere cooperation (under Article 4(3) TEU) to the EU against the wishes of the other two branches of government. Even if the judgment is about principle, the price is too high to pay as an ultra vires act is not to be applied in Germany. This means effectively that the German Government is put on the spot and asked to choose between its EU membership obligations and its allegiance to the Constitution as interpreted by the Constitutional Court. At the same time, the judgment raises a question about the extent to which the duty of sincere cooperation under EU law applies in the internal tensions of a Member State.
While, therefore, protecting individual rights under the Constitution, the PSPP judgment questions the principle of separation of powers under the German Constitution and the unity between the three branches of government and people to respond to external pressure from the ECB. The judgment is, however, more than an attempt of the German Constitutional Court to revert to a long-standing statement of intention to review EU law and show its real teeth to the EU Institutions. As such we must be careful in attributing it a veneer of constitutional patriotism. By holding that both the German Government and Parliament violated the Constitution, judges turn in effect against all parties involved in the materialisation of the PSPP, albeit them sitting in Frankfurt, Luxembourg or in Berlin. One can hardly interpret as healthy national dialogue the 3-month ultimatum given by the Constitutional Court to the German Government and Parliament to secure a new evaluation of the PSSP from the Governing Council of the ECB that complies with the proportionality test set by the Court as regards its economic and fiscal policy implications. The ECB needs, in particular, to provide authorisation to the Bundesbank to send to the Constitutional Court all relevant documentation both published and unpublished providing the necessary proof that all possible consequences of the purchase program were considered. Failure to do so means that the Deutsche Bundesbank will have to withdraw from the implementation and enforcement of the PSPP.
Conclusion
While EU Institutions are far from being infallible and Member States can and should confront their counterparts in the EU, the current decision sets a dangerous course because it allows no room for internal dialogue to be fostered between the Constitutional Court, the Government, and Parliament so that a uniform national approach can be adopted against ECB policies, whether this means accepting them or challenging them before the CJEU as a Member State. The Constitutional Court’s judgment shall not therefore be only interpreted as an act of defiance against the EU but also as a decision that jeopardises the Constitutional Court’s own reputation (which, as explained yesterday, has been envied by last instance courts across Europe) and, depending on the EU’s reaction, Germany’s good record of membership in the EU.
The ECB’s and CJEU’s responses to the judgment, as well as the Commission’s issuing of a Press Release warning of the possibility of bringing infringement proceedings against Germany (if the Bundesbank fails to implement its obligations under the Eurosystem) are proof that the judgment is more than a storm in a teacup and that the current mutiny in Karlsruhe may have to be resolved by using formal EU dispute resolution mechanisms. Any fears that the PSPP judgment is emblematic of the wider rule of law crisis (in the form of defiance towards EU membership obligations) that has been brewing for the last half decade at the heart of the EU are indeed legitimate. Responding to such a crisis during an extraordinary period of disruption, ill health and economic hardship is perhaps the biggest challenge that the EU has been confronted with since its very inception. This is tenfold when faced with a founding Member State questioning, through its judiciary, the integrity of EU Institutions. Let us hope that both the EU institutions and the German Constitutional Court will measure the cost of this episode and common sense will prevail.
The author wishes to thank Mike Gordon and his colleagues Anastasia Karatzia and Nikos Vogiatzis for their useful suggestions. This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.
Lee Marsons, GTA in Public Law and PhD candidate at the University of Essex
Though lawyers normally loathe sweeping statements, it is fair to say that Covid-19 has affected virtually everything and everyone in the British state. As part of my work for the UK Administrative Justice Institute (UKAJI), I have been recording the response to the virus particularly from an administrative and public law perspective. In a little under a week, I have recorded over 150 incidents of administrative action connected to Covid-19, including the publication of guidance, policy, practice directions, advice, amendments, instructions, orders, postponements, and regulations. These entries can be found here. This is in addition to the behemoth parliamentary action in the form of the Coronavirus Act 2020, which will significantly expand and modify a variety of executive powers and duties. Rather than analyse the ‘correctness’ of any of these measures, which I would find impossible in the anxious immediacy and constancy of the pandemic, this post will instead highlight important features of the British response to Covid-19 connected to administrative law.
The expansion of administrative powers and suspension of administrative duties
The administrative response to Covid-19 has been vast, touching, among others, court and tribunal procedure, economic regulation, education provision, immigration enforcement, local government duties, ombud complaints-handling, and social security provision. In my UKAJI collation, there have been at least 28 statutory instruments issued by Ministers, as well as advice, policy alterations, and guidance published by virtually every public body in existence. By itself, the Coronavirus Act 2020 reaches 102 sections and 29 Schedules, and it contains some of the most significant expansions of administrative power in several generations, if not ever. The Bingham Centre for the Rule of Law has described the Act as creating the most sweeping administrative powers ever taken in peacetime. However, to my mind, it is not simply the creation of new administrative powers and penalties that is of interest, but also the mass disapplication of administrative duties found in other legislation, presumably so that authorities can focus their resources on combating the pandemic.
As far as administrative powers and duties, the 2020 Act permits the following:
Sections 2 to 4 and Schedules 1 to 3 permit nursing and medical registrars to temporarily register new medical practitioners outside of normal training rules, so long as those registered are ‘suitably experienced’;
Section 10 and Schedules 8 to 11 alter existing legislation on detention for mental health reasons, with the result that a detention may be ordered by a single medical practitioner if requiring the normal two would result in undesirable delay;
Section 15 and Schedule 12 disapply ordinary statutory duties on local authorities that require them to provide care to children, the disabled, and the elderly;
Section 25 permits Ministers to require information from persons involved in the food supply chain. Section 28 gives Ministers the power to impose a financial penalty on the balance of probabilities if they believe that the person has without reasonable excuse provided that information;
Sections 37-38 and Schedules 16, 17, and 18 give Ministers the power to issue directions on the closure of educational and childcare facilities;
Section 50 and Schedule 20 give Ministers the power to issue directions on the closure of any port, which also creates an offence for failure to comply with the direction;
Sections 51 and Schedule 21 give public health officers, constables, and immigration officials the power to direct a person to report to a coronavirus assessment and screening centre, while creating an offence for failure to comply with the direction;
Section 52 and Schedule 22 give Ministers the power to issue directions as to public movement, gatherings, premises, and events, while creating an offence for failure to comply with those directions; and
Section 76 grants the Treasury the power to direct HM Revenue and Customs (HMRC) to have any function related to coronavirus.
Ministers have started to exercise these powers, with the Act receiving Royal Assent on 25 March. Nevertheless, the Act is broadly inoperable thus far. The Coronavirus Act 2020 (Commencement No. 1) Regulations 2020 brought into force Schedule 13 of the Act which amends how deaths may be officially registered in England and Wales, and sections 19 and 21 of the Act which alter the requirement for confirmatory medical certificates for cremations in England, Wales, and Northern Ireland. In addition, the Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 brought into force s.10 on the modification of mental health and mental capacity legislation in Wales, along with Schedule 8 on proceedings of the mental health review tribunal in Wales. The Regulations also bring into force on 1 April s.15 which deals with the powers and duties of local authorities in Wales. The most substantial use thus far, however, has been by Scottish and Northern Irish Ministers, who issued the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and the Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020, which, inter alia, order the closure of most businesses alongside imposing conditions on public movement and gatherings, with offences created to enforce the restrictions.
Home detention and business closure through ministerial directive
One of the remarkable features of the current response is that the most significant interferences with normal liberty – such as carrying on a business, leaving the house, and gathering in public – are being achieved by delegated legislation issued by the executive. As I noted here along with Theodore Konstadinides, thus far the vast majority of this delegated legislation has been issued without having been laid before Parliament for approval, due to reasons of urgency (though will have to be laid within 28 days). The most significant orders include the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and the Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020. As I will make clearer, there are important differences between these Regulations – including the enabling power used and the imposed restrictions – but for now I will concentrate on broad similarities. Each regulation gives Ministers the power to declare an ‘emergency period’, starting when the regulations come into force. A Minister must review the need for restrictions every 21 days and the regulations expire after six months. In addition, there is a duty on the Minister to terminate a restriction if they no longer believe it to be necessary.
In terms of restrictions, the regulations impose closures on, inter alia, restaurants, cafes, bars, pubs, cinemas, betting shops, casinos, spas, salons, gyms, playgrounds, and outdoor markets (except food stalls). The regulations also impose conditions on freedom of movement and assembly. Each regulation declares, in language that feels peculiar to read in peacetime: ‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’
A reasonable excuse includes, among others, obtaining household necessities, taking exercise, seeking medical assistance, attending a funeral, donating blood, avoiding injury or harm, caring for the vulnerable (defined as a person over 70, a person with a listed underlying health condition, or a pregnant woman), and to attend work where it is not reasonably possible to work from home. In addition, public gatherings of more than two people are prohibited, except for a finite number of reasons, including that the people are members of the same household, participating in lawful work, or fulfilling a legal obligation.
These restrictions are enforced by constables, police community support officers, designated local authority officers, or any other person designated by Ministers. These officials may issue a ‘prohibition notice’ to any person they reasonably believe is violating a restriction, if it is necessary and proportionate to prevent a person from violating that restriction. It is an offence, without reasonable excuse, to contravene a prohibition notice. Officials may also direct a person to return home, direct the dispersal of a gathering, or use reasonable force to require these things. Officials may further direct an adult responsible for a child to secure a child’s compliance with the restrictions if a child is repeatedly failing to comply. Contraventions may be punished by officials through ‘fixed penalty notices’, that is, financial penalties of £60 for a first contravention (or £30 if it is paid within fourteen days), £120 for a second contravention, up to a maximum of £960 for subsequent contraventions. No prosecution may be brought before twenty-eight days have passed since the imposition of the penalty and no prosecution at all may be commenced if a person has paid their liabilities under the notice.
One curious feature to emerge among the UK’s constituent nations is the slightly different restrictions imposed by the individual regulations. In Wales, Regulation 8 of expressly limits exercise to no more than once a day. In the English equivalent, there is no such limitation, nor in the Scottish or Northern Irish equivalents. Moreover, Regulation 4 of the Scottish Regulations and Regulation 6 of the Welsh Regulations require any business which is permitted to be open to take reasonable measures to ensure that persons maintain a distance of two metres while in the premises. There is no such requirement in the English or Northern Irish equivalents.
The vires of the Regulations
Another notable feature is that both the English and Welsh Regulations were issued under s.45C of the Public Health (Control of Disease) Act 1984, which enables Ministers to impose, inter alia, ‘restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health’ (s.45C(3)(c). These may be provisions that are general, contingent, or specific in nature (s.45C(2)(b)) and s.45F makes clear that Ministers may create offences, confer functions on any person, and provide for the enforcement of restrictions. Despite this apparent breadth, in a fascinating blog, Lord Anderson – the former Independent Reviewer of Counter-Terrorism Legislation – has highlighted a plausible vires concern. This is that s.45C(4) declares that restrictions may include in particular:
(a) a requirement that a child is to be kept away from school;
(b) a prohibition or restriction relating to the holding of an event or gathering;
(c) a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains; and
(d) a special restriction or requirement.
A special restriction or requirement in (d) is one that can only be applied by a magistrate under s. 45G(2). Anderson’s argument is that while the words in particular mean that the list is not exhaustive, any restriction imposed must nevertheless be eiusdem generis (of the same nature) as those in the list. The difficulty is that the listed examples more naturally refer to individual persons, not the entire country at large. Therefore, as Anderson notes: ‘An ultra vires challenge would attract strong arguments in both directions.’
By contrast, the Northern Irish and Scottish regulations were made under Schedules 18 and 19 of the Coronavirus Act 2020 respectively, which empower Northern Irish and Scottish Ministers to achieve the same in virtually identical language. This difference in enabling power is because the 1984 Act, by virtue of s.79, does not extend to Scotland or Northern Ireland. But I do not foresee any different vires issue arising from the use of different statutory frameworks. Not only is the language identical in the empowering provisions, but the subsequent provisions imposing conditions on those powers are also near identical, albeit modified to fit context. Section 45D(1) of the 1984 Act reads:
Regulations under section 45C may not include provision imposing a restriction or requirement…unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
And paragraph 2(1) in, for example, Schedule 19 of the 2020 Act reads:
Regulations under paragraph 1(1) may not include provision imposing a restriction or requirement…unless the Scottish Ministers consider, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
Given the particular impact of Covid-19 on the elderly and medically vulnerable; the consistent global action comparable to the UK’s; the lethality and infectivity being higher than standard influenza; the novel nature of the disease; the lack of judicial medical expertise; the importance of early and rapid containment; the lack of a vaccine; the possibility of a second winter peak in 2020; the fact that government policy appears simply to be following its medical officers; and evidence that the initial distancing advice was not being followed to a maximal degree, in my view suggests that, on a judicial review, these measures would be regarded as well within proportionate use of the powers.
Discouraging misbehaviour and zealous enforcement
One interesting, potentially problematic feature of the administrative response has been the eliding of the subtle – but crucial – distinction between government advice and the actual rules imposed by the Regulations. Naturally, ministerial advice as to social distancing and isolation is not replicated verbatim in the delegated legislation. This has led to debates about the legitimate role of the police in discouraging irresponsible behaviour, even when no specific rule prohibits that behaviour. One example that has rapidly become infamous is that of Derbyshire Police, who used a drone to record and publish footage of several people taking exercise in the Peak District. Derbyshire considered that it was ‘not appropriate to be getting in your car and travelling to take this exercise, particularly to a location, such as the Peak District that in normal times can become busy.’
Another concern that may proliferate is the seemingly zealous, legalistic, and literalistic enforcement of the Regulations by some officials. Section 6(2)(a) of the English Regulations, for instance, limit shopping trips to ones that ‘obtain basic necessities… and supplies for the essential upkeep, maintenance and functioning of the household…’. Because of this, one officer fined a customer in a supermarket £30 due to the customer having a birthday card alongside necessities in their shopping basket.
An inconclusive conclusion
The coronavirus pandemic is expected to peak in the UK between late April and early June of 2020. Therefore, the country is either at an early- or mid- stage in its response to the virus. Even if, on an irrationally optimistic assessment, a vaccine is produced, approved, and funded globally and imminently, the administrative situation is nevertheless changing daily – perhaps more frequently than that. Consequently, while this piece provides a brief overview of the situation at the time of writing, I am left with the inevitable unease that, even within a few hours, this information may be out of date. Such are the precarious, extraordinary times we are in.
Essex Law Research Blog 