Posts Tagged ‘Scotland’

Paul Reid: The Declaration of Arbroath – 6 April 2020

6 April 2020 marks the 700th anniversary of the Declaration of Arbroath (often referred to as the Declaration of Independence).  That ascription normally goes hand in hand with mention of its most famous passage (“not for glory, nor riches, nor honours…”).  Truth is, as a constitutional instrument, it has little direct contemporary relevance (the idea of a particularly Scottish medieval constitution has been described, perhaps harshly, as a myth: C. Kidd, Sovereignty and the Scottish constitution before 1707, [2004] JR 225).  That is reflected in the relatively low-key celebrations (as compared to the Magna Carta celebrations a few years) that had been planned.  But it is an anniversary that nevertheless ought to be marked.  Whilst as a contemporary constitutional instrument it is of little relevance, it remains significant as an early expression of a constitutional ideal. 

The Declaration was in fact a letter from the Barons of Scotland to Pope John XXII and was part of an ongoing dialogue between Robert the Bruce and the Holy Sea.  In 1317, Bruce had received a Papal Bull threatening not only his own excommunication but that of the whole of Scotland if hostilities with England did not cease.  But such a cessation was, for Bruce, conditional upon his recognition as King of Scotland (in the Papal Bull, he was addressed only as “Robert Bruce, governing in Scotland”).  In 1319, following the recapture of Berwick by Bruce, the Pope summoned him and four Scottish bishops to attend the Papal court.  They refused and their excommunication followed.  It was as part of that ongoing dialogue that the Estates of Scotland gathered in Arbroath in April 1320 and sealed the Declaration of Arbroath.  For its time, its clarity of thought, logical structure and the subtlety with which some of its sharper points are made make it a remarkable document.  Its most famous passage comes immediately after Bruce’s claim to be recognised as King has been set out but is an assertion of their right to drive him from the throne should Bruce seek to make Scotland subject to rule by the English crown.  So, the Declaration is not only a plea for recognition of Scotland’s territorial sovereignty, it is also a statement of its peoples’ (or, at least, its nobles’) sovereignty as to who their King should be.

The Declaration did not directly lead to peace but following the deposition of Edward II in 1327, an opportunity for peace arose.  In 1329, a Papal Bull was issued permitting the anointing and crowning of the King of Scotland by the bishop of St Andrews.  But the Declaration was an important step along the way.

Whilst it may have little contemporary significance, it is still worth recognising.  Tierney (Constitutional Law and National Pluralism, OUP, Oxford, 2004, p.22) notes:

The origins of nationalism, the most enduring political movement of the modern era, are often traced to the revolutionary upheavals of the 18th century, particularly in France.  Although expressions of nationalism may have appeared sporadically in medieval Europe, there is general agreement that its star rose ‘bright and clear in the late eighteenth-century France and America.

Arbroath’s most famous letter can fairly be recognised as a medieval expression of such nationalism.  Some have suggested (MacDonald-Lewis, L. (2009), The Warriors and the Wordsmiths of Freedom: The Birth and Growth of Democracy. Croydon: Luath Press) that the Declaration provided at least some inspiration for Jefferson and others as they founded the United States.  Whether that is true or not will never now be known for sure.  But it would be nice to think that efforts of those gathered in a small Angus fishing town all those centuries ago had some influence.  And that alone, suggests it is an anniversary worth acknowledging.

Inevitably, almost all of the events marking the anniversary have been curtailed to some extent.  Details of events being hosted by the National Museum of Scotland are available here and the Declaration is due to be going on public display in the National Library for the first time in 15 years (details here).  A collection of essays discussing the various participants in, and signatories of, the Declaration is also being published (details here).

Paul Reid is Advocate and part-time tutor of Public Law
at the University of Edinburgh (and proud son of Arbroath)

(Suggested citation: P. Reid, ‘The Declaration of Arbroath: 6 April 2020’, U.K. Const. L. Blog (6th April 2020) (available at https://ukconstitutionallaw.org/))

Jeff King: The Lockdown is Lawful: Part II

‘Quarantine’ or mere ‘Restriction’?

In the post published yesterday, I explained that under Part 2A of the Public Health (Control of Diseases) Act 1984, UK and Welsh ministers can make regulations to protect public health that can impose ‘special restrictions’ on persons, things and premises.  They can impose such restrictions in the same way that Justices of the Peace may do against individuals and groups. However, there are four exceptions to that general rule (section 45D(3)).   The general regulation-making powers cannot be used to force a person to (a) submit to medical examination; be (b) removed to or (c) detained in a hospital or similar establishment, or, and mostly notably, (d) ‘be kept in isolation or quarantine.’   The rationale for the exclusions seems to be that these highly invasive things must be done on a case-by-case (i.e. person or group) instead of community-wide basis.

So, does the lockdown amount to a ‘quarantine’, forbidden by section 45D, or is it a restriction on movement and contact, empowered by section 45G?   The 1984 Act does not define ‘quarantine’ but some public health experts appear at times to describe the enhanced ‘community containment’ procedures as tantamount to a nationwide quarantine.  For example, in a recently published study, Annaliese Wilder-Smith and David O Freedman catalogue different health responses to infectious pandemics, including isolation, quarantine, social distancing and community containment.  They observe that ‘[i]t is a continuum to expand from social distancing to community-wide quarantine with major movement restrictions of everyone.’  And they add that China is experiencing a ‘community-wide quarantine on an order of magnitude that mankind has never witnessed before.’  The American public health law expert Lawrence Gostin and his co-author Sarah Wetter in an article published in The Atlantic equate a lockdown to a ‘nation-wide quarantine.’

Whatever the temptation of using the word ‘quarantine’ in natural language, I would argue the current lockdown should not be seen as a ‘quarantine’ within the meaning of the 1984 Act.  Invasive as they are, the restrictions imposed fall short of what a quarantine typically is, and are of a different character in crucial respects.  One can leave the house for thirteen enumerated reasons, and people have significant practical discretion in deciding whether these apply.  The parks and roads are still reasonably busy with reasonably compliant people.  That kind of license is simply incompatible with the assumptions built into a standard quarantine scenario.  Furthermore, a quarantine is imposed to prevent the risk of the quarantined person transmitting the disease.  The lockdown aims at restricting intermixing between persons who might transmit or who might catch it, which imposes no analogous potential stigma.  The measures aim at preserving the public health system from being overwhelmed rather than at controlling suspected cases of infection.

Even so, it remains the case that measures that ask persons to self-isolate could not be made directly enforceable en masse by way of regulations under the 1984 Act.  The 1984 Act does not permit ministers to make regulations that directly impose isolation on anyone.  To convert ‘self-isolation’ into ‘enforced isolation’ is not straightforward. What they can do by regulations under the 1984 Act is to extend the power to act on a case-by-case basis to persons other than Justices of the Peace. That is what they did in the previous Health Protection (Coronavirus) Regulations 2020, which were replaced by a fuller regime allowing ‘public health officers’ (either previously recognized or designated as such by ministers) to have powers relating to ‘potentially infectious persons’ in schedule 21 of the Coronavirus Act 2020.  Under that schedule of the 2020 Act, a public health officer can impose isolation (reg 14(3)) after assessment, but there are several safeguards built in at regulation 15.   Nevertheless, from what I can tell, neither the 1984 Act nor the 2020 Act contains any power for a minister to impose directly a nationwide isolation requirement on a class of persons. That would take a new statute. The reality is that strong encouragement followed by action in individual cases of non-compliance would in all likelihood make a direct conferral of isolation imposing powers unnecessary.

Human Rights and Proportionality

The present Government can be applauded for not suspending the operation of the European Convention on Human Rights when it passed the Coronavirus Bill (now Act) 2020.  During Lords debate on the Bill, Lord Bethell declared for the Government that ‘every exercise of power by a public authority under this Bill is already required to be compliant with the Human Rights Act. I further reassure the House that, at all times, this Government will act with proportionality.’ (HL Deb., Vol. 802, Col.1777 (25 March 2020)). If reasonable access to the High Court is provided to enable judicial review – an issue to which the House of Lords Constitution Committee placed significant emphasis in its report on the Coronavirus Bill –  it means that specific regulations as well as specific directions, orders, fines and prosecutions under the regulations will be subject to review under the common law and under the Human Rights Act 1998.  The 1984 Act itself also requires that any special restriction imposed ‘is proportionate to what is sought to be achieved by imposing it.’ (section 45D(2)).

These statutory, common law and human rights safeguards tend to support the vires of the whole scheme.  It may be ironic for both legal and political constitutionalists that fulsome powers of judicial review would actually vouch for the lawfulness of the sweeping executive action taken here. If the lockdown is disproportionate or unfair in points of detail there are legal remedies available, e.g. reading in exceptions, reading restrictions down (both under section 3(1) of the Human Rights Act 1998 and using the principle of legality), or quashing individual prosecutions or fines against persons.

To the more general question of proportionality, there is no doubt that the lockdown is a profound intrusion into our freedom of movement. But there are a number of factors that vouch for the proportionality of the measures (i.e. that the measures are suitable, necessary and strike a fair balance between rights and the ‘general interest of the community’ (as the phrase is put in Soering v United Kingdom). A number of other response measures in Britain were tried and found wanting. The social distancing ‘advice’ was effectively ignored.  (The idea that the measure must be the ‘last resort’ was the most decisive proportionality criterion in the one European Court of Human Rights case  which analysed deprivations of liberty to deal with infectious diseases (Enhorn v Sweden (2005), [44)).The lockdown itself contains a range of ‘reasonable excuses’ permitting a measure of personal freedom, shopping, movement and exercise.   There are compensatory social security and public investment measures to help employees, the self-employed and various businesses.  And the regulations require the Secretary of State to reconsider the necessity of the measures every 21 days. They therefore appear suitable and necessary within the legalistic understanding of both ideas.

But do they strike a ‘fair balance’?  It seems to me that there are few conceivable cases, and perhaps none, in which so weighty a constraint on liberty has been so evenly borne by the entire population (though clearly not every Englishman’s home is a castle).   That means that the views of the general population bearing the incredible weight of the lockdown measures are a material indication of their fairness. A recent YouGov poll found that 93 percent of the population supported the lockdown (76% ‘strongly’), with no significant party, age or regional differences.   Another found that 46% of people found that the police were enforcing it about rightly, while 29% felt they were doing so ‘too lightly.’

Neither is there any conceptual misunderstanding afoot here, whereby one ‘balances’ human rights on the one hand against the public welfare on the other.  Rights are meant to trump countervailing policy arguments, after all.  But in reality, there are human rights on both sides of the scale.   Equally acute are the rights to life and health of vulnerable groups such as the elderly, homeless, and those with underlying health conditions, as well as the rights to just working conditions of NHS staff and other providers of essential services. The UK is under various international obligations to respect all of these rights. A harmonious interpretation of all human rights does not support an interpretation of liberty that would disable state power to protect in these circumstances.  That power is eminently justifiable in human rights terms.  Indeed, on 22 March 2020 the French Conseil d’Etat ruled on a case brought by a union for doctors (Jeunes Médecins) arguing that respect for the human rights of the population and for health and other essential care workers actually required a ‘total confinement of the population’ instead of the policy adopted on 16 March 2020, one which was quite similar to the English and Welsh lockdown. The court rejected the central claim, but did find there was enough to the argument to cause it to order the government to issue more specific and more constraining regulations on permissible travel and exercise. The government responded overnight by issuing new regulations.

The basic compatibility between the lockdown and human rights principles should not encourage apathy. The exercise of powers under both the 1984 and the 2020 Acts must respect all human rights and be lawful, non-discriminatory and strictly proportionate.   Public authorities may seek to use intrusive forms of surveillance, may fail to adjust measures when medically indicated, or may bid for an extension of powers whose duration or scope is not justified.  Only vigilance in Parliament, civil society and by judges mindful of their constitutional duties can ensure that the lockdown is remembered as an historic public health success rather than as a legally and ethically dubious clamp-down on human rights in the name of public health.

Jeff King is a Professor of Law, University College London and a Legal Adviser to the House of Lords Constitution Committee.  The opinion in is written in a purely personal capacity

The author thanks Alison Young, Daniel Greenberg, Stephen Tierney, Francois Lichère and Duncan Fairgrieve for comments (and offers his apologies for omitting a careful discussion of the Civil Contingencies Act 2004).

(Suggested citation: J King, ‘The Lockdown is Lawful: Part II’ UK Constitutional Law Blog U.K. Const. L. Blog (2 April 2020) (available at: https://ukconstitutionallaw.org/)).

Jeff King: The Lockdown is Lawful

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (Reg 6) and the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (Reg 8) both provide in identical wording that  ‘During the emergency period, no person may leave the place where they are living without reasonable excuse.’ Both also enumerate thirteen exceptions (‘reasonable excuses’) to the rule.  These are the restrictions widely referred to as the ‘lockdown.’  There is a question at the moment about whether they are so invasive as to be unlawful.  This two-part post briefly reviews the legal basis for the confinement. I argue that the lockdown is lawful.

The Statutory Framework

The recently adopted Coronavirus Act 2020 does not confer new powers on UK and Welsh ministers to impose a lockdown on the people of England and Wales. It does confer such powers on Northern Ireland (specifically, the Northern Ireland Department of Health) in Schedule 18; and on Scottish ministers in Schedule 19.  Neither Northern Ireland nor Scotland had them previously.  The scheme in those two schedules is roughly – and in the case of Northern Ireland almost verbatim – based on the powers accorded to UK and Welsh ministers under the Public Health (Control of Disease) Act 1984.    It is there that the source of the powers both now and into the future are to be located in respect of any lockdown.  If the present lockdown is found to be outwith the 1984 Act, it would follow that no lockdown is presently permissible anywhere in the country.

The 1984 Act may seem a bit old as a framework of powers for dealing with a pandemic like Covid-19. But, in fact, the relevant part of the 1984 Act (Part 2A) was inserted by Part III of the Health and Social Care Act 2008.  That later Act was designed with epidemics in mind, as it was a response to the SARS epidemic of 2003. It does two main things. First, it empowers the Secretary of State to make regulations to respond to the protection of health in response to the spread of infectious disease (ss. 45B-45F).  Second, it provides a framework for the exercise of powers by Justices of the Peace to make health protection orders against particular individuals or groups of individuals (ss.45G-O). Essentially, when the Government wants to make a broader set of rules and regulations applying to all or some significant part of the population it uses the powers under ss.45B and following; and when some public authority wants to impose restrictions on a specific person or group of persons it applies to a Justice of the Peace under ss.45G and following.

The Lockdown Provisions

In the lockdown regulations cited in the introduction above, the Government has clarified that it is acting under section 45C of the 1984 Act.   I will reproduce some of the relevant provisions that are on point (with emphasis added in some places):

  • s.45C(1): ‘The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).’
  • s.45C(2): ‘The power in subsection (1) may be exercised—

(a) in relation to infection or contamination generally or in relation to particular forms of infection or contamination, and

(b) so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances.’

  • s.45C(3)(c): ‘Regulations under subsection (1) may in particular include provision… imposing or enabling the imposition of 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(4)(d): ‘The restrictions or requirements mentioned in subsection (3)(c) include in particular…a special restriction or requirement.’

The regulations also specify on their face that they are imposing a special restriction or requirement under s.45C(4)(d).  So, what are those, exactly? 

The 1984 Act is somewhat intricate here.  They are to be defined for the purposes of section 45C(4)(d) by reference to those things that Justices of the Peace are empowered to deal with in respect of persons, things and premises in sections 45G-O (see section 45C(6)(a) – subject to certain exceptions which I come to further below).    Under those provisions, if a constable or public health officer wanted to act against an individual or group of persons that were at risk of spreading infectious disease, s/he would apply to a Justice of the Peace to issue an order in respect of those persons.  Any such order would be appealable to the Magistrates’ Court.  The powers in section 45C, by contrast, are for the Secretary of State to deal with more significant public health threats for which individual applications are manifestly ill-suited, presumably by reason of the numbers at issue.  So the answer to what a ‘special restriction or requirement’ is, is provided by section 45C(6)(a). 

We don’t need to get any further lost in the weeds here. It is unfortunate that while the regulations themselves do not specify precisely which ‘special restriction’ provision they are using.  In my view the most relevant provision granting powers to impose a ‘special restriction or requirement’ is

  • s. 45G(2)(j): ‘The order may impose on or in relation to [a person] one or more of the following restrictions or requirements— […]that [a person] be subject to restrictions on where [a person] goes or with whom [a person] has contact.’ 
  • s. 45J confirms explicitly that ‘a person’ also includes ‘groups of persons.’

All told, it seems reasonably clear to me that the words of the 1984 Act can be construed literally to confer powers to impose the lockdown.  Section 45C empowers to act in response to ‘infection or contamination generally,’ that it is to ‘make provision generally’ and the restrictions against persons relating to movement and gathering is provided for explicitly.  Moreover, the entire point of the regulation making powers is to enable the Government to respond to problems for which individual applications to Justices of the Peace are unsuited. 

More than (general) words can say?

But should the literal words be read down?  The common law’s love of liberty has often and rightly suggested doing so.  As the noted jurist and peer, Lord Anderson, has put the challenge on his blog, ‘[f]or such a remarkable limitation of personal freedom to be contemplated by statute, one would have expected to find clear words in section 45G(2): something like “that P be required not to leave the place where P is living, save for specified purposes.”  That might seem apiece with the idea behind the principle of legality and many other public law cases which are apt to deny that general rather than specific words can permit serious infringements of personal liberty.  Relatedly, was it the gist of the Act to deal with something much more limited than a health scare that precipitates a nation-wide lockdown?

In my view, both these questions can be answered by considering the purpose of the 2008 amendments of the 1984 Act.  While Pepper v Hart [1992] UKHL 3 often makes judges cringe these days, there’s no reason for legal scholars or the public to be indifferent to what those presenting and pushing the Health and Social Care Bill have had to say about it.  At his second reading speech of the Health and Social Care Bill (Lord Darzi of Denham) (HL Debates, Vol. 700, Col. 452 (28 March 2008)), the general point of the 2008 amendments was clarified:

In relation to Part 3 of the Bill, the Public Health (Control of Disease) Act 1984 consolidates earlier legislation, much of it dating from the 19th century. Not surprisingly, many of its assumptions, both about risks and about how society operates, are now out of date. It provides for only a limited range of actions when other measures could be more effective in terms of protecting public health, and more convenient and less intrusive for those concerned. […]

[T]he new legislation contained in Part 3 will provide for a comprehensive set of public health measures to help prevent and control the spread of disease caused by infection or contamination which present, or could present, significant harm to human health. This will enable a quick response to new or unknown diseases or threats, such as the ones we have seen in recent times, for example SARS or Polonium 210. Some of the measures proposed could impact on an individual’s human rights. That is why we have provided significant safeguards in the legislation to protect individuals. Human rights require a balance to be struck between the freedom of the individual and the health and safety of other people; we are confident that we have struck the right balance.​

The statement doesn’t settle the interpretive issue (precisely why judges often cringe).  But the idea that the 2008 Act provides an updated framework for dealing with ‘new or unknown diseases’ such as SARS is directly on point, as is the recognition that this could lead to incursions into individual liberties. It is in the very nature of new or unknown pandemic diseases that makes complete parliamentary foresight almost impossible to achieve, and a reaction time to them needs to be rapid in order to avert disaster. The fact that the WHO has strenuously advised social distancing, and that internationally speaking, lockdowns have been regarded by a critical mass of Governments and public health experts alike as the only way to make effective that recommendation, also suggests that it is a reasonable interpretation of the Part 2A powers under the 1984 Act.  If so much of the world could come quickly to the view that a lockdown was the only, inevitable and indeed proportionate response to this ‘new or unknown disease or threat,’ it is not unreasonable to read a SARS-responsive piece of legislation as catering for that kind of situation. That was presumably the Government’s position when it did nothing to amend the Coronavirus Bill to confer explicit lockdown powers during the three days of legislative scrutiny that followed its announcement of the lockdown on Sunday, 22 March 2020.

Jeff King is a Professor of Law, University College London and a Legal Adviser to the House of Lords Constitution Committee. 

The opinion in is written in a purely personal capacity. The author thanks Alison Young and Daniel Greenberg for comments (and offers his apologies for omitting a careful discussion of the Civil Contingencies Act 2004).  Part II will address whether the lockdown may be regarded as a quarantine and whether it is a proportionate response and is compatible with human rights.

(Suggested citation: J King, ‘The Lockdown is Lawful’ UK Constitutional Law Blog U.K. Const. L. Blog (1 April 2020) (available at: https://ukconstitutionallaw.org/))

Small States and Institutional Change: the Lesson of Brexit

Tomáš Weiss, Head of Department of European Studies and Jean Monnet Chair in EU International Relations and Diplomacy Studies at the Institute of International Studies, Charles University, Prague, argues that institutionalisation can empower small states. He also notes their dependence…
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