1.  The United Kingdom (UK) is a unitary, parliamentary constitutional monarchy, with no codified constitution. The Parliament is bicameral, with an elected House of Commons and (mainly) appointed House of Lords. The Commons prevails over the Lords in the event of a sustained policy disagreement, by law and by convention.

2.  By convention, the Monarch appoints as Prime Minister the person best placed to command the confidence of the House of Commons after a general election. The Prime Minister in turn appoints a Cabinet. Cabinet ministers sit primarily in the House of Commons but also in the House of Lords. As the Cabinet enjoys the confidence of the House of Commons, the elected Government enjoys a position of dominance in both executive and legislative affairs. An Act of Parliament is the highest form of law, qualified in only very limited ways by judges and previous international engagements.

3.  Law-making is divided between Acts of Parliament; the common law, administered by judges of the higher courts and some tribunals; statutory instruments (predominantly regulations) laid by Government and often subject to scrutiny before the UK Parliament; and prerogative powers legally held by the Monarch but exercised on the advice of Ministers. Each normatively prevails over the other in the order just presented. In addition to law, UK ministers frequently issue published ‘guidance’ to public authorities and to the public, clarifying either compliance with legal obligations or giving advice which is not binding in a legal sense.

4.  A quasi-federal state, the UK is composed of four ‘nations’. With 85 per cent of the population, England has dominated the Westminster Parliament and there have been few calls for the creation of a separate English Parliament, despite the recent adoption of an English Votes for English Laws procedure in the UK Parliament. By contrast, since 1998 there has been significant devolution of legislative competence and executive authority to Wales, Northern Ireland and Scotland.¹ Each has its own legislature, executive, and electoral arrangements, but the arrangements are asymmetrical in line with the unique politics of each region. The legislatures are now de facto permanent constitutional institutions.² Though each devolved legislature can enact primary legislation and make executive regulations, the Westminster Parliament’s legislature is legally supreme over the devolved legislatures even on matters within devolved competence. The Sewell constitutional convention that the UK Parliament not ‘normally’ legislate on matters within devolved jurisdiction without a legislative consent motion of the devolved legislature has been broken twice since 2018.

5.  Emergency powers are reserved to the Westminster Parliament in respect of Scotland and Wales,³ whereas health and social services are devolved to each region. The primary public health response to the pandemic has been led by the UK Government for England, then by the Governments of Wales, Scotland, and Northern Ireland for each of the devolved regions. While in the first half of the pandemic the policies were almost identical in timing and content, there was a more pronounced (but still moderate) divergence from about October 2020 onwards. This report focuses on the position in England and Scotland, the two most populous nations in the UK.

6.  Many services, notably social housing allocation, education, homelessness decision-making, public parks, and coastal areas, are regulated by statute but managed, with considerable discretion, by local government. There are 408 elected councils in the UK. Approximately half their revenue arises from central government grants, and the remainder through local taxation. Health protection regulations may confer functions on ‘local authorities and other persons’.⁴

7.  Criminal justice and legal jurisdiction for England and Wales are reserved to the UK Parliament, but devolved to Scotland and Northern Ireland. Policing in England and Wales is governed by the Police Act 1996.⁵

8.  The response to the pandemic has not changed the basic constitutional structure of the state. It has fortified the importance of devolution arrangements for meaningful autonomy. For the UK Government and Westminster Parliament, however, a number of pre-existing tensions in respect of the executive dominance of Parliament, lack of accountability over delegated law-making, and backlogs in the court system were exacerbated during the pandemic.

9.  The United Kingdom left the European Union (EU) in January 2020 and is only bound to give effect to transitional arrangements that have had little legal bearing on its management of the pandemic.⁶ However, the departure from the EU did have a material impact upon the development of vaccine distribution policies (see further, Part IV.A.8 below). It has a dualist legal order in respect of other international legal obligations. The Human Rights Act 1998⁷ gives direct domestic effect to the UK’s obligations under the European Convention on Human Rights (ECHR). Any public executive action, including statutory instruments, that violate Convention rights is unlawful and will be controlled by the law courts. Acts of the UK Parliament are either given a strained reading to achieve compatibility with the Convention, or a declaration of incompatibility is issued.⁸

10.  There was no decision to derogate from the ECHR, or any other international convention, despite this being advocated by some as a pro-human rights step to avoid the normalisation of emergency powers.⁹

11.  There is no formal constitutional procedure for declaring a national state of emergency, but the Civil Contingencies Act 2004 is a statutory framework functionally equivalent thereto,¹⁰ the ‘protection of health’ being an emergency category under the Act. It was not used. Under the 2004 Act, emergency regulations can override Acts of Parliament but they must be renewed every month, cannot be used to restrict industrial action, nor make significant alterations to criminal punishment and procedure. Such regulations must be scrutinised by Parliament within seven days of being made, can be amended by resolution of both Houses, even after the regulations are made, and if Parliament stands prorogued or adjourned, it must be recalled not more than five days after the regulations are made.¹¹ These features amount to a stronger system of parliamentary scrutiny than that applicable under either of the two key statutes discussed in Part II.B below.

12.  The decision to not use the Civil Contingencies Act 2004 for the initial response was criticised intensely by some commentators,¹² but was raised as a complaint only by three lawmakers in the House of Commons during its passage.¹³ Notably, section 21(5) of the 2004 Act provides that emergency regulations under the Act are not available unless there is an emergency, it is necessary to make provision for it, and it is urgently required. The second condition requires consideration of whether existing legislation suffices; the third whether there is time to enact legislation through the ordinary (including fast-tracked) legislative procedure. In giving evidence to the House of Lords Constitution Committee, the Government stated that although they would have ‘preferred’ to use the 2004 Act ‘because it is such a thoughtful and useful approach to emergency legislation,’ their lawyers were ‘categoric’ in advising that there would be a credible legal risk that they had had enough time to prepare fresh legislation.¹⁴ They also contended that the passage of the Coronavirus Act 2020 was accelerated unexpectedly, due to enhanced urgency when they prepared and laid the legislation. The issue remains under consideration by the House of Lords Constitution Committee, to whom a significant number of witnesses argued that the Civil Contingencies Act 2004 should have been used, at least in the short-term, due to the superior provision for parliamentary scrutiny.¹⁵ It should be noted, however, that section 22(3) of the 2004 Act provides that emergency regulations can ‘make provision of any kind that can be made by an Act of Parliament,’ a power the breadth of which is not contained in either of the two main statutes explored in Part II.B below.

13.  Implementation of the World Health Organization’s (WHO) International Health Regulations (IHRs) was achieved primarily in 2008 through an amendment of the Public Health (Control of Diseases) Act 1984. Section 45B of the 1984 Act allows ministers to make health travel regulations ‘for giving effect to any international agreement or arrangement’ (which include ‘recommendations’)¹⁶ ‘relating to the spread of infection or contamination.’ The Coronavirus Act 2020 extends similar powers to Scotland and Northern Ireland. Despite these provisions, there is no evidence of any regulations giving direct legal effect to any WHO recommendation during the pandemic, though Scotland was explicit in adopting WHO criteria in formulating its plans for relaxing the general lockdown.¹⁷ UK ministers have nevertheless quoted WHO standards, including in guidance on facemasks,¹⁸ transport of infectious substances,¹⁹ production of hand-sanitiser,²⁰ and advice for adult care workers.²¹

14.  The framework for dealing with Covid-19 the main consists of two statutes: the Public Health (Control of Diseases) Act 1984 and the Coronavirus Act 2020. The 1984 Act was comprehensively updated in 2008 after the SARS pandemic and WHO IHRs.²² It conferred a range of powers on UK and Welsh ministers to enact public health regulations for controlling the spread of infectious disease in England and Wales (sections 45B–45F), and on local magistrates (judges) for imposing public health restrictions on individuals under proceedings launched by local officials (sections 45G–45O). These include powers to enact travel restrictions. As the result, most of the main, and certainly the more intrusive, public health interventions adopted in England and Wales were made under powers contained in the 1984 Act.

15.  Schedules 18 and 19 of the Coronavirus Act 2020 extend almost identical powers to the Scottish authorities on the one hand, and directly upon the Department of Health in Northern Ireland on the other. The Act received legislative consent from Scotland on 24 March 2020. The Coronavirus (Scotland) Act 2020,²³ an Act of the Scottish Parliament, also developed Scottish policy responding to the pandemic in areas already within devolved legislative competence, chiefly adjusting the law of evictions, criminal procedure, and strengthening public provision to support those affected by the pandemic. By contrast with the UK Coronavirus Act 2020, the Scottish Act initially expired on 30 September 2021 but was extended on that date to 31 September 2021 (under section 12(3) of the Act). The extension was effected by laying regulations subject to the affirmative resolution procedure (section 12(5)).

16.  Neither the Public Health (Control of Diseases) Act 1984 nor the Coronavirus Act 2020 contain a specific procedure for declaring a public health emergency (see by contrast, Part II.A above). However, section 45R of the 1984 Act provides for an ‘emergency procedure’ under which the Secretary of State making one of the more intrusive instruments under the Act ‘is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being … laid and approved [by either both Houses of the UK Parliament or by the Welsh Assembly]’. In practice, such statements are all but non-justiciable.²⁴ Where the urgent procedure is used, the parliamentary scrutiny is ‘made-affirmative’ such that regulations will lapse if not approved by both Houses within 28 sitting days of being laid.

17.  The Coronavirus Act 2020 is a complex and lengthy instrument, containing some 102 sections and 29 schedules (amounting to 342 printed pages). Its principal aims include increasing the available health and social care workforce, measures to contain the virus, managing the deceased and providing support to persons. Among its more sensitive provisions, the 2020 Act permitted the postponement of sub-national elections and referendums (sections 59–70), enabled the use of video and audio technology in both criminal and civil court proceedings (sections 53–57), gave powers to close schools and nurseries (section 37), and enabled the use of ministerial direction in respect of port closures or restricting events, gatherings, or premises (section 52).

18.  The legislation was fast-tracked. Though it had its first reading (published, but without debate) on 19 March 2020, it had three sitting days of parliamentary scrutiny (23–25 March 2020), only one of which was in the House of Commons.²⁵ Though fast-tracked, the Government clarified that there had ‘there was an enormous amount of bilateral discussion between the parties in the crafting of the Bill originally, so there was a lot of engagement on it,’²⁶ a point acknowledged by the Loyal Opposition during debates on the bill.²⁷ Passage was smooth and welcomed by all parties in the House of Commons. The short timeframe was widely regretted but accepted as necessary. The House of Lords Select Committee of the Constitution found that it fulfilled that Committee’s previous guidance²⁸ on the appropriate usage of fast-track legislation.²⁹ It was not the object of any sustained campaign or criticism by the UK’s leading civil liberties or constitutional affairs organizations either at or shortly after its passage. Even those who ultimately found the Act to be necessary were nevertheless deeply troubled by the speed of its passage and highly constrained scrutiny of its content, and scepticism about it grew over time.

19.  The Coronavirus Act 2020 includes a sunset clause, retiring all but certain specified provisions of the Act in two years (section 89). However, section 90(2) provides that the executive can postpone the expiry date of any relevant provisions of the Act for a period of up to six months, and these regulations are subject to the made affirmative procedure (section 93). There is no limit to the number of times an extension may be given. The most important concession obtained during the passage of the bill was the inclusion of periodic six-monthly reviews, under which both Houses must vote affirmatively on a motion providing ‘that the temporary provisions of the Coronavirus Act 2020 should not yet expire’ (section 98). However, the section is framed such that the motion cannot easily be amended to allow some provisions and not others to expire—it is an yes/no binary vote on continuing or discontinuing most of the Act.³⁰ Two such votes have occurred since the passage of the Act (see Part III.A below).

20.  By contrast with the UK Coronavirus Act 2020, the Coronavirus (Scotland) Act 2020 was initially set to expire on 30 September 2020. It was extended on that date to 31 September 2021 (under section 12(3)). The extension was effected by laying regulations subject to the affirmative rather than made affirmative resolution procedure (section 12(5)).

21.  In addition to these two Acts of Parliament, other UK legislation was passed in 2020 to provide assistance in managing the pandemic.³¹

22.  The bulk of all UK legislation is found in statutory instruments, which are a form of written law-making delegated by statute to Government ministers, and which have the force of law upon being made. The more important of the statutory instruments are subject to parliamentary scrutiny, broadly considered to be inadequate. ³² Though there are several forms of scrutiny, three are especially pertinent to the public health regulations addressed in this report. Instruments subject to negative scrutiny are immediately effective when made, but can be nullified or ‘negatived’ by a resolution of either House. Instruments subject to the draft affirmative procedure are laid before both Houses soon after being published, and do not take effect until they have been approved by resolutions of both Houses. Instruments subject to the made-affirmative procedure are those which take immediate effect upon publication but which will lapse if not subsequently ratified by affirmative resolutions, within a specified period—usually 28 or 40 days, extended during recess. While the UK process of parliamentary scrutiny has outwardly impressive forms of democratic control of delegated rule-making, the reality is that only 0.01 per cent of statutory instruments have ever been voted down in Parliament.³³

23.  Between January 2020 and April 2021, 406 ‘coronavirus-related’ UK statutory instruments had been made.³⁴ The provision for parliamentary scrutiny of each instrument varied, and a handful were laid but subject to no formal scrutiny:

• •  293 were made subject to the negative resolution procedure. By convention, instruments subject to the negative resolution procedure are laid before Parliament 21 days before they come into force. However, 173 of them breached that conventional rule;³⁵

• •  99 have been subject to the made-affirmative procedure;

• •  24 have been subject to the draft affirmative procedure.

24.  Notably, only 21 of such instruments were made under powers contained in the Coronavirus Act 2020. Powers in 120 different acts were used, with many adopted under section 45R of the Public Health (Control of Diseases) Act 1984, frequently made two to three weeks before being debated and approved in Parliament.³⁶

25.  The substantive coverage of the health regulations is examined in Part IV.A below. As a framework, the 1984 Act provides a number of features designed to respect a general idea of proportionality in the making of public health regulations:

• •  Regulations imposing restrictions on persons, things, or premises must be proportionate to what is sought to be achieved (section 45D(1));

• •  Regulations imposing a ‘special restriction’ can only be made if they ‘respond to a serious and imminent threat to public health’ (section 45D(4)(a));

• •  Emergency regulations must be accompanied by a Ministerial statement of ‘urgency’ (section 45R(2));

• •  Regulations imposing a ‘special restriction’ ‘may’ be kept under review during a ‘specified interval’ set out in the regulations—for quarantine or hospital detention that period must be no less than 28 days (section 45F(7)–(8));

• •  Any regulations adopted under section 45C must provide a right of appeal to a magistrate’s court for any decision taken to enforce such regulations (section 45F(6));

• •  Any measure imposing a ‘special restriction’ (ie an onerous imposition on individual liberty), is subject to range of additional protections (sections 45C, 45D, 45F, 45Q);

• •  Health protection regulations may not allow the creation of an offence that is punishable with imprisonment (section 45F(5));³⁷ and

• •  Forced medical treatment, including vaccination, cannot be mandated or authorised by general regulations (section 45E).

26.  Although these restrictions are plentiful, the limitations regarding urgency and proportionality are not matters that are likely to be enforced by UK courts, and the frequent resort to the made-affirmative procedure has been a prominent source of complaint as explained in Part III.A below. There is no mandatory expiry date for regulations adopted under the 1984 Act. In practice, a wide variety of sunset periods were used in health regulations and many are listed in early correspondence between the Government and the House of Lords Secondary Legislation Scrutiny Committee.³⁸ For instance, the first stay-at-home or (colloquially) ‘lockdown’ regulations were subject to a sunset period of 12 months (see Part IV.A.1 below).

27.  As the Coronavirus Act 2020 extends many of these same powers to the Scottish Government and Northern Ireland Department of Health, subject to the relevant legislative scrutiny, the procedure for adopting health regulations has similar features and protections. As of 14 April 2020, 140 Welsh and 156 Scottish statutory instruments, and 189 Northern Ireland statutory rules have been adopted with ‘coronavirus’ in the title of the instrument. The smaller numbers reflected more limited competencies. Though health is devolved to Scotland and Northern Ireland, it is noteworthy that to date only 109 of the UK statutory instruments were laid before Parliament by the UK Department of Health and Social Care.³⁹

28.  In the UK, statutory instruments enacting public health regulations have in most cases been subject to some (mostly negative and made-affirmative) legislative scrutiny. However, the Coronavirus Act 2020 empowers the UK Secretary of State for Education and for Home Affairs, as well as the Scottish Government, to issue directions which are not subject to any direct parliamentary scrutiny. Directions are discussed further in Part IV.A below.

29.  Government guidance to the public and public authorities is gathered in one key website.⁴⁰ There has been a substantial degree of confusion between what has constituted law and non-legally binding guidance. Legal rules (whether legislation or directions) are binding, whereas guidance to the public is advisory.⁴¹ Guidance given to public authorities may be regarded, depending on the context, as not strictly binding but something for which the authority must give cogent, judicially reviewable reasons for departing from.⁴²

30.  The variation between law and guidance was significant as Ministers often improvised answers to questions in press briefings, and law enforcement agencies filled in ambiguities in the legal provision. Most famously, the initial lockdown order was issued through a television broadcast by the Prime Minister on the evening of 23 March 2020.⁴³ However, the announcement had no legal basis, as the lockdown regulations took effect on 26 March 2020. In another case, when a minister was asked about how much outdoor exercise was permitted under the general lockdown regulations, he announced ‘about a half an hour a day’ despite this having no basis in law. Some jurists claim that the variation between law and guidance was an instance of ‘constructive ambiguity’ deliberately exploited by Government.⁴⁴ It is also possible that the Government was minded to send messages that were clearer than the text of the law. A sub-group of the Scientific Advisory Group on Emergencies (SAGE) (on which see Part III.E below) known as Scientific Pandemic Influenza Group on Behaviours (SPI-B) was advising on how to make public health messaging clear and effective. However, insiders report that such advice was frequently disregarded.⁴⁵

31.  This section focuses on the UK Parliament. The UK Parliament engages in scrutiny of the Government’s performance chiefly through Prime Minister’s Question-Time (PMQ), submission of questions for written answer (QWAs), debate on coronavirus-related bills brought to the Houses by Government, and most importantly through the functioning of various select committees. The Loyal Opposition, ie the largest party in the House of Commons after the governing party, enjoys the power to table an Early Day motion that will ordinarily be debated. It thus retains the power to insist on a Covid-19 debate and pass a resolution of censure.

32.  There is a select committee for each government department, whose leadership is elected by the House of Commons rather than appointed by Government whips, and which report regularly. It had been observed repeatedly in evidence to the Constitution Committee that the select committees of both Houses had played perhaps the most important role in holding government to account.⁴⁶ The more active include the House of Commons Justice Committee, the Home Affairs Committee, the Joint Committee on Human Rights, and the House of Lords Constitution Committee. Each presently have open inquiries under which they take oral and written evidence from a range of stakeholders on respect for human rights and constitutional norms during the management of the pandemic. The House of Lords appointed a new Covid-19 Committee in June 2020, whose core remit is to consider the long-term implications of Covid-19 for economic and social wellbeing in the UK.

33.  There is parliamentary scrutiny of public health regulations, as noted above, but it has been truncated and exacerbates long-recognised difficulties with the general process. Scrutiny permits approval or rejection, but not amendment. In evidence to the Constitution Committee, the Co-Deputy Leader of the Liberal Democrats, Baroness Walmsley, observed that ‘so far, scrutiny of coronavirus-related [statutory instruments], which is of course where most of the additional powers are to be found, has been inadequate. Many of the SIs still have not been debated, even though they have been in operation for some weeks and, in some cases, months. It is not clear whether there has been any progress in bringing debate on them forward, at least the initial debate.’⁴⁷

34.  A range of complaints about the stunted role of Parliament in reviewing statutory instruments were made across the both Houses. First, the House of Lords’ Secondary Legislation Scrutiny Committee found the delay between the making and debating of health regulations was preventing appropriate parliamentary scrutiny.⁴⁸ In a number of cases, the instruments that had been made had already been amended by the time the debate had been scheduled. Second, the volume of instruments meant that the complexity impeded a proper understanding of the subject of debate. And third, many commentators were not convinced that there was a need to rely so extensively on the made-affirmative rather than draft-affirmative procedure, since debate in the latter case would occur before the measure became law.⁴⁹ In recognition of the overuse of the made-affirmative procedure to evade the House of Commons, the Speaker of the House of Commons, Sir Lindsay Hoyle, made a rare intervention in criticising the Government:

The way in which the Government have exercised their powers to make secondary legislation during this crisis has been totally unsatisfactory. All too often, important statutory instruments have been published a matter of hours before they come into force, and some explanations why important measures have come into effect before they can be laid before this House have been unconvincing; this shows a total disregard for the House.⁵⁰

35.  Despite the disquiet, Parliament resolved on 30 September 2020 to continue the powers under the Coronavirus Act 2020. An amendment to the motion extending the powers, drafted by Sir Graham Brady, proposed to amend the motion to support continuation of the powers under the Act to add the following words to it:

provided Ministers ensure as far as is reasonably practicable that in the exercise of their powers to tackle the pandemic under the Coronavirus Act 2020 and other primary legislation, including for example Part 2A of the Public Health (Control of Disease) Act 1984, Parliament has an opportunity to debate and to vote upon any secondary legislation with effect in the whole of England or the whole United Kingdom before it comes into effect.⁵¹

36.  Another proposed amendment moved by prominent members of the Opposition party, but not signed by the Leader of the Opposition, would have required scrutiny of lockdown (stay at home) regulations to occur within seven days of being laid, as well as greater clarity between law and guidance.⁵² However, the Speaker, mindful of the controversy elicited by his predecessor when selecting amendments during the Brexit controversy, decided against selecting both amendments because they may ‘give rise to uncertainty about the decision the House has taken’ and thus risk ‘undermining the rule of law.’⁵³ The Speaker announced with evident regret that the decision was a ‘binary’ yes or no vote on the continuation of all or none of the Act’s temporary provisions, subject to a cap of 90 minutes on the debate.

37.  In the second debate occurring in the House of Commons on 25 March 2021, there were concerns raised by the Opposition about the application of, and incorrect charging under, schedule 21 of the 2020 Act, which confers powers to detain potentially infectious persons. The Shadow minister for health called for its repeal.⁵⁴ The vote extending the powers was nevertheless won comfortably. More generally, scholars have criticised the six-monthly reviews on account of the binary choice of supporting or opposing the continuation of the Act, the poor quality of the periodic reports due under the Act, and the absence of time for debate.⁵⁵

38.  As noted in Part II.A above, the powers under the Coronavirus Act 2020 may be extended repeatedly by statutory instrument passed under the made-affirmative resolution procedure.

39.  The Westminster Parliament held an Easter recess from 25 March 2020 until 21 April 2020. That is somewhere between one to two weeks longer than the ordinary duration of an Easter recess.

40.  Upon resumption, Members of Parliament (MPs) could participate in oral questions, urgent questions, and ministerial statements under temporary arrangements for hybrid proceedings. Hybrid proceedings allow MPs or peers to attend either in person or participate by video link, and, crucially, to vote remotely. Such proceedings were extended through May, but the Government announced on 11 May 2020 that it would end virtual proceedings and remote voting and took this decision without reference to the views of the other parties.⁵⁶ The Government moved a resolution on 2 June 2020 to end the use of remote-voting and required any MPs to participate within the parliamentary estate. That ended the use of hybrid proceedings, though within 10 days the Government permitted the re-introduction of hybrid proceedings for scrutiny proceedings (ie oral questions and ministerial statements) but not substantive proceedings (eg legislative scrutiny).⁵⁷ It argued that a physical presence was required to allow the Government to carry out its legislative agenda and members to carry out their parliamentary duties, and that remote voting meant parliamentarians could take their duties less seriously. But at the same time, mandatory social distancing in the chamber limited attendance to a maximum of 50 MPs.⁵⁸ On 10 June it extended a proxy-voting scheme to members who have self-certified as unable to attend Westminster for medical or public health reasons related to the pandemic—but it ended remote voting.

41.  The decision to end hybrid proceedings and remote voting were criticised as a ‘breach of fundamental democratic principles’ in an open-letter to The Times newspaper, by a range of democracy specialists from a range of think-tanks and universities.⁵⁹ In an assessment of the rationale for ending remote voting, the former Clerk of the House of Commons and editor of the leading treatise on parliamentary practice similarly observed that

The Speaker, the House of Commons Commission and the Procedure Committee, who have all worked hard to find a consensus on ways forward, have been shown in the end to be impotent in the face of a government using its majority to pursue national goals, as it is entitled to do, and seeing the House as just another institution to bring into line.⁶⁰

42.  The House of Lords, where the Government’s party holds no majority, quickly made provision for hybrid proceedings and online voting (through ‘PeerHub’), the latter of which commenced on 15 June 2020.⁶¹ All of its committees have met online after Parliament began sitting on 21 April, and proceedings have not been impaired significantly as a result of the online format, apart from the more subtle manners listed below. The retention of remote voting remains under serious discussion, as does the continuation of virtual meetings of select committees of the House of Lords.

43.  By contrast with the House of Commons, the Scottish Parliament’s chamber business is arranged by a Parliamentary Bureau composed of the Presiding Officer and a member of each political party that has more than 5 Members of the Scottish Parliament. Under this system, the Scottish Parliament first agreed to reduce the number of seats from 129 to 79, and then adopted hybrid proceedings and remote electronic voting. The latter two were rolled out gradually from May 2020 and into the summer period (including the summer recess period) and continue to be available until the present time.⁶²

44.  As to the satisfactory functioning of the UK Parliament, the common position among key stakeholders giving evidence on this theme to the Constitution Committee was that both Houses performed their core functions, that the Lords functioned fairly well, and that the Committees almost as well as they normally do. The Government party’s evidence to the Committee provides detailed exploration of the functioning of the Lords.⁶³ Yet there remained important problems relating to the use of technology, an inability to engage in forensic questioning of ministers due both to technology and limitations on the number of members who can speak, and a time ‘allowance’ of seven minutes per question. The Co-Deputy Leader of the Liberal Democrat Peers (the third largest party), Baroness Walmsley, observed that ‘[i]n Oral Questions, Ministers can give whatever partial or non-answer they like, knowing that they are unlikely to be pulled up on it, whereas in the Chamber Members can certainly show their dissatisfaction.’⁶⁴ The Convener of the Cross-Bench peers argued that the biggest problem ‘is lack of sufficient time for informed, detailed debate of the issues.’⁶⁵ However, Baroness Walmsley also observed that the ‘vast majority’ of the measures requested to improve proceedings in the House of Lords were granted, including hybrid proceedings.⁶⁶

45.  As for the House of Commons, commentators tended to agree that the chamber had provided an exemplary response at first. However, the difficulties identified were that the parliamentary timetabling tended to marginalise ‘backbench’ business (ie MPs not in either the Cabinet or Shadow Cabinet on the opposition benches), that Downing Street press conferences are replacing plenary debate in the Commons,⁶⁷ and that the ending of the hybrid arrangements in the Commons caused chaos, was disruptive, and stifled accountability.⁶⁸

46.  A common theme in both Houses was the turn towards press conference government and away from parliamentary government. In posing a question, one member of the Constitution Committee—himself a former Liberal Democrat member of the 2010 Government’s cabinet—claimed ‘I think many of us feel that there has been a real move away from Parliament to policy announcements being made at the podium of 10 Downing Street, with questions from a number of journalists rather than from MPs in the House of Commons primarily or from Peers in the House of Lords.’⁶⁹ Similarly, the Leader of the Labour Peers in the House of Lords observed that ‘I think there is a real danger that we are replacing the primacy of Parliament—the idea that Ministers should come to Parliament to make Statements—with a press conference in Downing Street with soft questions, starting with members of the public, pre-selected and so on.’⁷⁰

47.  The pandemic prompted significant and rapid changes to the operation of the criminal, family, and civil courts and tribunals in England and Wales, to make good a commitment to continue the work of the courts and tribunals ‘wherever possible’.⁷¹ Remote hearings were introduced rapidly across all jurisdictions (civil, family, criminal, and administrative law) during this period.⁷² Sections 53–57 of the Coronavirus Act 2020 amended existing law to permit ‘video/audio enabled hearings’ where ‘live video or audio link’ could take place as a substitute for the ‘physical courtroom.’ In such proceedings, all parties participate by video or audio link. In the senior courts, in large commercial cases and for interlocutory hearings, experience has been broadly positive,⁷³ however in the county courts which deal with the bulk of civil cases, and in the family courts, concerns have been raised about the impact of these arrangements on the right to a fair trial,⁷⁴ particularly for those who are vulnerable. The paucity of good quality management information about the operation of the courts and tribunals has undermined attempts to understand the impact of Covid-19 measures on both the justice system as a whole, and on parties’ experience of remote hearings in particular.⁷⁵ However, what management information does exist suggests significant reductions in the volumes of cases dealt with during the crisis, with the criminal courts being particularly badly affected. Data published by Her Majesty’s Courts and Tribunals Service shows that by July 2020, the number of outstanding cases in the Crown Court (trying more serious offences) had increased year on year by 29 per cent and in the magistrates’ court by 48 per cent.⁷⁶ Concerns about the extent of the backlog have prompted several parliamentary committees, including the Public Accounts Committee and Justice Select Committee to launch inquiries into the government’s plans to manage the crisis.

48.  Practice varied widely across different jurisdictions. In civil justice, fully and partly video and audio enabled hearings have been widely used across a range of cases. Evidence suggests that partly enabled hearings—where some participants are physically present and others participate remotely—have impeded fair participation.⁷⁷ A High Court judgment determined that a remote hearing in a medical negligence case would not be unfair, though it was undesirable.⁷⁸ Court listing prioritisation criteria have been used to give priority to more urgent cases, reducing the pressure on courts. Among the priority areas were committals, freezing orders and injunctions, cases with a serious ‘time element’, anti-social behaviour, homelessness, applications to displace under the Mental Health Act, and other ‘urgent’ cases and appeals in any of these cases.⁷⁹

49.  Similarly, in the family courts, video and audio hearings have been used across a range of cases, with emphasis placed on proceeding with those hearings designated as business priorities for the family justice system. The most urgent of such priorities included various public law remedies for protecting children from abuse, and responding to domestic abuse, genital mutilation, and forced marriage.⁸⁰

50.  In criminal justice, during the initial stages of the outbreak partly video or video enabled hearings were deployed to deal with urgent cases only—many hearings and trials were postponed indefinitely.⁸¹ All jury trials at the principal criminal court (Crown Court) were temporarily suspended due to the pandemic—despite external pressure generated by concern about a rising backlog of cases,⁸² the position of the Lord Chief Justice remained that it was not possible to conduct jury trials remotely. This led to the announcement of so called ‘Nightingale Courts’—rapidly established temporary courts aimed at increasing the capacity of the courts system to hear criminal cases.⁸³ In criminal hearings, judges, magistrates, legal advisers, court associates, and other essential court staff must be present in a physical courtroom, whereas prosecutors, defence solicitors, probation, liaison and diversion, youth offending teams, and interpreters may attend by video link if they have secured the court’s permission.⁸⁴ On 9 March 2021, the Government introduced the Police Crime Sentencing and Courts Bill in the House of Commons. Part 12 of this bill contained provisions which, if enacted, would expand arrangements for video hearings in criminal proceedings and place practices initiated under Covid-19 on a permanent footing.⁸⁵

51.  The UK’s tribunal system deals with a wide variety of disputes arising under social, employment, immigration, and tax legislation, disposing of up to one million cases a year. While the procedure rules for tribunals already allowed for any hearings to be conducted by video or audio technology, amendments were introduced under the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020⁸⁶ to further enable tribunals to adapt to the new circumstances. These amendments included allowing decisions without a hearing (on the basis of the papers), and that remote hearings may take place in private (but be recorded). Cases concerning issues of safeguarding, detention, and destitution were given priority listing for decision.

52.  Successive reports have raised concerns about or given early evidence of the adverse impact of the rapid transition to remote hearings on the capacity of the digitally excluded to participate effectively in hearings.⁸⁷ Evidence has shown that the measures have increased digital inequality, ⁸⁸ and impacted on the ability of vulnerable parties to comply with case management directions and give instructions to counsel.⁸⁹ In one case, the Court of Appeal upheld a court-issued practice direction that imposed a stay on all evictions, but which was capable of being lifted at the discretion of a court. Rejecting the claim that it was a violation of the right to a fair trial under the European Convention on Human Rights, the Court also found that though the court enjoys ‘a theoretical power to lift any stay, it would almost always be wrong in principle to use it.’⁹⁰

53.  As for physical, in-person proceedings, from 30 March 2020, the Court Service consolidated the work of all courts and tribunals into 157 priority court and tribunal buildings (42 per cent of the pre-Covid-19 Court Estate) in order to maintain the safety of all those working in and attending the courts.⁹¹ Participation in legal proceedings was deemed an ‘essential reason for travel’ when lockdown restrictions prevented all but essential travel. However, little research has been published on the impact of the pandemic on the willingness and ability of parties to bring and defend claims under Covid-19.

54.  Courts have adapted their processes in response to the pandemic, for example, allowing electronic filings and signatures.⁹² In addition, temporary amendments to the Civil Procedure Rules 1998 have been put in place to allow parties to agree extensions to directions without the court’s permission and enable judges to take into account the impact of Covid-19 when considering applications for extensions of time, adjournments, or relief from sanctions.⁹³

55.  The courts have remained open for judicial review claims throughout the pandemic. By 28 May 2020, the legal charity Public Law Project had recorded 63 challenges to the Government’s response to Covid-19, most of which were unsuccessful but several of which led to settlements or concessions that led the claimants to withdraw the claim.⁹⁴ Informal records held by Public Law Project detail 126 cases in which claims were filed and Pre-Action protocols were issued, 25 of which resulted in reported judgments.⁹⁵ Relevant reported public law cases are explored in this report under the substantive sections where such litigation is relevant.

56.  The Electoral Commission, an independent body, wrote to the UK Government on 10 March 2020 asking that local and other elections in England and Wales be suspended on health grounds for both members of the general public and for polling station staff.⁹⁶ Section 60 of the Coronavirus Act 2020 postpones ‘7 May Elections’ (ie local government elections, Mayor of London and London Assembly elections, elected mayors of local and combined authorities, and police and crime commissioners) to the same or near date the following year.⁹⁷ It ultimately postponed local elections due for 118 councils, mayoral and some assembly elections in the Greater London Assembly, and a variety of other elections. Some local referendums and council by-elections were also cancelled. The 2020 Act also deals with by-elections to various assemblies (section 61), and postpones elections under the Recall of MPs Act 2015 (section 62).⁹⁸ The Government confirmed in February 2021 that scheduled local government elections in May 2021 would be proceeding, with advice to use postal and proxy voting where possible.⁹⁹

57.  Though it regulates by-elections for constituency seats in the Scottish and Welsh Parliaments, the 2020 Act did not affect scheduled elections to the Scottish Parliament and the Welsh Parliament due on 6 May 2021, which are due to go ahead as planned.

58.  The Scientific Advisory Group for Emergencies (SAGE) is a convened body of scientific experts responsible for providing Cabinet Office Briefing Room (COBR) meetings with coordinated advice on interpreting complex or uncertain scientific evidence.¹⁰⁰ The Government’s Chief Scientific Adviser, along with England’s Chief Medical Officer, represent the views of SAGE in COBR meetings. SAGE is a standing body, having advised in eight emergency situations in the previous 11 years.

59.  Convened under the authority of the Cabinet, there is no statutory basis for SAGE and its advice does not bind Government. At the outset, the membership and publications of SAGE were not always published, leading to the creation of ‘Independent SAGE’ on 4 May 2020 by a fully-independent parallel group of high-level scientists, several of whom also sat on SAGE itself.¹⁰¹ Subsequently, the minutes of SAGE meetings relating to Covid-19 have been published,¹⁰² some under freedom of information requests, as has the list of participants. The objections to the independence of SAGE thereafter became more muted.¹⁰³

60.  In May 2020 the Government created a new body entitled the Joint Biosecurity Centre (JBC).¹⁰⁴ It is headed by a civil servant with scientific background, and accountable to the Department of Health and Social Care and to Parliament under the Minister of Health. It works in close partnership with Public Health England, and in cooperation with SAGE. The director of the JBC was previously a director of the National Cyber Security Centre—part of the intelligence and security organisation Government Communications Headquarters (GCHQ). Its mandate is to consider and analyse data about factors leading to the spread of the virus, to develop advice in relation to local control, travel, and in particular to recommend particular courses of action in connection with data analysis. One article noted that ‘[s]ome see using the counterterrorism model for a contagious disease as an over-engineered distraction.’¹⁰⁵ The operations of the group are less transparent—general minutes are not published—and various experts believed the creation of the JBC was an effort to ‘marginalise’ science and lessen the more independent role of SAGE.¹⁰⁶

61.  In an in-depth report on the use of scientific advice in the pandemic, the House of Commons Science and Technology Committee concluded that the JBC is insufficiently transparent and should publish the minutes of its meetings. It also expressed concern that Government has been ambiguous about the extent to which the JBC is intended to replace SAGE in the long run, the latter being the ‘primary mechanism for providing scientific and technical advice in emergency scenarios.’¹⁰⁷

62.  The Scottish Government established the temporary Scottish Government Covid-19 Advisory Group in March 2020, to advise the Scottish Government in its interpretation of UK-wide SAGE advice and its application to Scotland, to advise on health measures in Scotland, and relay questions from the Scottish Government to SAGE.¹⁰⁸ Its minutes are published.

63.  There is no indication of any restrictions on press reporting by Government during the pandemic.

64.  The compliance with freedom of information laws by public authorities was obstructed by disruptions arising from the pandemic. In a comment on its regulatory role during the pandemic, the Information Commissioner’s Office claimed that: ‘[w]e recognise that the reduction in organisations’ resources could impact their ability to comply with aspects of freedom of information law, such as how quickly FOI requests are handled, but we expect appropriate measures to still be taken to record decision making, so that information is available at the conclusion of the emergency.’¹⁰⁹

65.  The Local Government Ombudsman investigates and reports on maladministration in local government, and the Parliamentary and Health Service Ombudsman does likewise with maladministration in central government. Neither undertook any general accountability investigations for pandemic-related policy. The Parliamentary Ombudsman did interrupt investigations of complaints against the National Health Service (NHS) between 26 March 2020 and 1 July 2020, in order to allow the NHS to focus on the pandemic. By early 2021, it reported a severe backlog, such that ‘it could take several months before we can look at your case.’¹¹⁰

66.  No special independent reviewer of Covid-19 legislation or policy has been appointed. General and thematic scrutiny has been carried out by standing parliamentary committees of significant status.

67.  Public health measures covered in this Part have been enacted under the complex scheme of devolution. Within the first months of the pandemic, the public health interventions were similar in timing and content. As time wore on, however, the policies grew apart in both respects, though not dramatically. Part IV.A concentrates on the main rules applicable to England, paying attention to variations in Scotland. The analysis draws attention to the major variations between the two, and on occasion, between all four nations. The role of local government in enacting public health measures has been limited in England and Wales, though more prominent in Scotland.

68.  In May 2020, the UK government unveiled a five-tier ‘alert system’, administered and advised on by the Joint Biosecurity Centre, for identifying the level of risk posed by the pandemic. The five level are:¹¹¹

• •  Level five (red) — a ‘material risk of healthcare services being overwhelmed’

• •  Level four — a high or rising level of transmission

• •  Level three — the virus is in general circulation

• •  Level two — the number of cases and transmission are low

• •  Level one (green) — Covid-19 is no longer present in the UK

69.  The Joint Biosecurity Centre advises on setting the level, which is done on the basis of ‘Reproduction’ or ‘R’ number and overall number of cases at any time. Despite having a nationalised health service, one of the world’s finest medical academies, and a clear (if late) commitment by national and devolved governments to taking public health interventions seriously, the UK (with England in the lead) nevertheless had nearly the highest case fatality rate in the world. It did so despite having imposed three ‘national lockdowns’—national stay-at-home orders commencing respectively in March and November 2020, as well as in January 2021. These periods apply to England, but were mirrored in important ways in each other jurisdiction. Each period correlated with a noticeable drop in infection and death rates, but only slightly during the second one. The rates of transmission and fatality rose sharply from December 2020. The number of daily confirmed Covid-19 deaths peaked on 10 January 2021 with 883,¹¹² before the effects of stringent mobility restrictions and school closures, twinned with rapid and widespread vaccination, brought about a precipitous drop in both transmission and fatalities.

70.  A complete list of the hundreds of public health regulations applicable to England is published on the website of the UK Parliament, and many are linked to a summary discussion of each instrument by a parliamentary body tasked with bringing important matters of policy substance to the attention of the House of Lords.¹¹³

71.  The stay-at-home laws in the UK were highly variable within England and also in the devolved regions.¹¹⁴ Though announced by television on 23 March 2020, they became law on 26 March 2020. Laid under the made-affirmative procedure, a near two-hour House of Commons debate occurred on the measure on 4 May 2020.¹¹⁵ Among its principal provisions, persons could only leave their home if they had a proscribed ‘reasonable excuse’ such as the need to provide care or assistance, to exercise alone outdoors, to travel for the purposes of work, and to access critical public services (regulation 6).¹¹⁶ These regulations are enforceable by a police constable or other ‘relevant person’ (regulation 8). The instrument would have lapsed after 12 months (regulation 12) but lockdown provisions were amended frequently. The Secretary of State could terminate any restriction by way of direction (regulation 3). Notably, the first stay-at-home provision (colloquially called ‘the first lockdown’) was accompanied by school closures. It is essential to recognise that the stay-at-home order in all UK nations at all times permitted outdoor exercise alone or with members of one’s household, and that such exercise included taking a walk. Despite guidance at times suggesting the contrary, there was no limit in England on the number of periods of exercise that could be taken. When the expression ‘national lockdown’ is used in Part IV of this report, it refers to the measures applicable to England rather than to the UK broadly. The expression is meant to distinguish between all-England lockdowns and local lockdowns.

72.  The substance of the various stay at home orders has been affected in the main by the other restrictions on gatherings and closures, which are discussed in Parts IV.A.2–6 below.

73.  The relaxation of the lockdown came in series of amendments to the first lockdown regulations, the first being ‘outdoor recreation’ and exercise with one member of another household as of 13 May 2020.¹¹⁷ The relaxation of restrictions was done under the made-affirmative procedure or ‘urgent procedure’,¹¹⁸ despite it being doubtful of any urgent need to relax the stay at home order. The regulations ending the lockdown substituted a prohibition on ‘staying away’ from home overnight without a reasonable excuse, which remained effective from 1 June and 7 July 2020.¹¹⁹ The first lockdown regulations were revoked in their entirety on 4 July 2020 and replaced by a new general measure on coronavirus restrictions concerning business closures, gatherings, and access to public places.¹²⁰

74.  As general lockdown measures were revoked, England moved towards local measures, using bespoke regulations commencing with the City of Leicester on 4 July 2020.¹²¹ On 14 October 2020, it moved into a three-tier system, later a four-tier system. The regulations provided different categories of restriction in schedules to the regulations and permitted ministers to designate authorities as falling into particular tiers depending on scientific advice. The new regulations also empowered local authorities to issue orders closing premises and restricting access to events and outdoor spaces.¹²² In Wales, the general coronavirus restrictions regulations also contain provision for ‘local restrictions’ which are applied to ‘local health protection areas.’ Areas subject to local restrictions are contained in a regularly amended schedule to the general set of coronavirus regulations in Wales.¹²³ The same approach was taken in Northern Ireland, where all postcodes were covered by local lockdown rules into the autumn of 2020.¹²⁴ In Scotland, ministers have powers under Schedule 19 of the Coronavirus Act 2020 to make regulations providing for local authorities to issue directions imposing prohibitions, requirements, or restrictions on individuals. The Scottish Government made regulations to that effect on 27 August 2020,¹²⁵ conferring powers on Scottish ministers to direct local authorities to issue directions. Most local lockdowns in Scotland have been directed by local authorities exercising these powers, which means there has been no legislative scrutiny over the content of the directions.¹²⁶

75.  Local lockdowns were controversial to the extent that they resulted in unequal burdens and tensions between national politicians (who imposed them) and local politicians (who endured them). The most dramatic involved Andy Burnham, the Mayor of the City of Manchester, who insisted that stringent lockdown policies for Manchester should be accompanied by a greater package of financial relief.¹²⁷

76.  As a result of alarming levels of increased transmission, evidenced by the very high number of local authorities under somewhat controversial local lockdown arrangements, and after resisting pressure from the Loyal Opposition to introduce a ‘circuit-breaker’ lockdown to halt the trend,¹²⁸ the Government introduced the so-called ‘second lockdown.’ It lasted four weeks from 5 November 2020.¹²⁹ It did not entail school closures and its impact on transmission was noticeable, but slight by comparison with the first and third national lockdowns.

77.  On the basis of the perceived inefficacy of the second national lockdown, and the introduction of a highly transmissible new ‘Kent variant’ of Covid-19, the minutes of SAGE from 22 December 2021 state that:

It is highly unlikely that measures with stringency and adherence in line with the measures in England in November (i.e. with schools open) would be sufficient to maintain R below 1 in the presence of the new variant. R would be lower with schools closed, with closure of secondary schools likely to have a greater effect than closure of primary schools.¹³⁰

78.  The so-called third national lockdown, effective from 6 January 2021, but preceded briefly by strict measures imposed for the Christmas holiday period,¹³¹ reintroduced a stay-at-home order and school closures.¹³² On 22 March 2021, after the quite successful deployment of its vaccine strategy (see further Part IV.A.8 below), the Government made its ‘roadmap regulations’ which legislated a framework of ‘steps’ for winding down mobility and other restrictions.¹³³

79.  The Scottish regulations were initially similar, but measures took effect slightly later in line with the slower arrival of Covid-19 in Scotland.¹³⁴ On 19 May 2020, it was made permissible to attend places of worship with members of one’s family.¹³⁵ On 29 May, persons were permitted to take exercise with members of one other household and outdoor recreation alone or with members of one’s own or another household.¹³⁶ In both cases, the rule was extended to members of two other households on 22 June 2020.¹³⁷ The initial stay at home restrictions were revoked on 10 July 2020. The Scottish framework of restrictions based on ‘levels’ and local powers was created in October 2020. ¹³⁸ Although amended several times, putting Scotland in the strictest level of restrictions from 5 January 2021,¹³⁹ a scheme for easing the restrictions was made effective in law from 15 March 2021.¹⁴⁰

80.  The lockdown regulations were subject to a judicial review, in which complainants argued that the regulations were unnecessary, overbroad, and disproportionate. Their reasoning had received support by a number of distinguished jurists, including the judicially and politically conservative former Supreme Court justice, Lord Sumption.¹⁴¹ The core challenge was that the Public Health (Control of Diseases) Act 1984 did not plainly authorise, as it must, a measure as sweeping as a national stay at home order. The High Court judge rejected the application, and was upheld by the Court of Appeal.¹⁴² Both held that the 1984 Act was indeed concerned with general measures of just that sort, that it contemplated a pandemic of this sort, and that judgments about urgency and proportionality were for the minister. The case was refused leave to appeal to the Supreme Court because it did ‘not raise an arguable point of law.’¹⁴³ Despite this, there have been successful legal challenges to the rules, or government concessions in response to legal claims brought and then discontinued. These typically related to the protection of vulnerable persons, and will therefore be explored in Part VI of this report, to be published later this year.

81.  Restrictions on international travel were imposed by regulation on 2 June 2020,¹⁴⁴ requiring ‘all passengers’ arriving from abroad to complete a Passenger Location Form (regulation 3) and to self-isolate upon arrival to England for a period of 14 days (regulation 4). After a 28 day review, a subsequent amendment inserted a schedule into these regulations providing a list of countries and sporting events ‘exempt’ from the self-isolation requirement.¹⁴⁵ The original regulations were laid under the negative scrutiny procedure, despite being exceptionally controversial due to the economic impact they were expected to have on the travel industry, a matter reported to House of Lords by the Secondary Legislation Scrutiny Committee.¹⁴⁶

82.  From 13 January 2021, the government required proof of a negative Covid-19 test to enter the country.¹⁴⁷ From 15 February 2021 onwards, anyone entering England was also required to take a test on days 2 and 8 of self-isolation.¹⁴⁸ Most importantly, the government required any person entering England from a country on the UK’s travel ban list, or having passed through one of these countries in the last 10 days, to quarantine in a designated hotel for a period of 10 days and pay £1,750 as the expense.¹⁴⁹ Finally, every person wishing to travel abroad was required, from 8 March 2021 onwards, to fill in a travel declaration form and to have an essential reason to travel.¹⁵⁰ The same rules apply to Scotland.¹⁵¹

83.  On 29 March 2021 it became legally necessary to have a ‘reasonable excuse’ for any foreign travel to outside the UK—which excludes foreign holidays.¹⁵² Reasonable excuses are prescribed in the regulations, and include work, volunteering, medical reasons, education, and certain other reasons.

84.  There were no laws restraining internal travel within England, however lockdown regulations forbade leaving home for anything other than a ‘reasonable excuse’, which permitted exercise and countryside walks. In Scotland there was additional guidance to stay within five miles of home,¹³³ while in Wales people were forbidden by regulations to ‘leave the area local to where they are living’ between 1 June and 6 July 2020.¹³⁴ Scotland later established a four-level system where, in levels three and four, persons were not allowed to leave their local authority area, with a few exceptions.¹⁵³ Scotland announced that from 26 April 2021, travel between Scotland, England, and Wales would be allowed.¹⁵⁴

85.  Public gatherings were restricted by the general lockdown regulations. In all four nations, the original regulations prohibited gatherings of more than two persons subject to limited exceptions, which included ‘essential for work purposes’. The gathering restrictions were relaxed on 1 June 2020 to permit certain businesses to open for the training of elite athletes, and clarified that certain places could be used to provide childcare.¹⁵⁵ Importantly, the regulations changed the original lockdown regulation 6, which previously prohibited people from leaving home without reasonable excuse, to instead prohibit a person from staying overnight at any place other than their normal residence without reasonable excuse (specific examples of which are given). It also changed the limits in the original lockdown regulations on gatherings (regulation 7), to allow six people from different households to meet outdoors. It also allowed the opening of outdoor markets, and amenities for certain other outdoor sports, but requires the closure of venues for indoor games or entertainment; theme parks and adventure activities; social clubs; zoos, aquariums, and safari parks; and any indoor attractions at landmarks, heritage sites, film studios, and gardens, including observation wheels.¹⁵⁶ It also extended the period for review of the restrictions under the lockdown regulations from every three weeks to every four weeks.

86.  As of 4 July 2020, private indoor and outdoor gatherings of more than 30 people were prohibited in England, subject to certain exceptions for certain businesses or charities.¹⁵⁷ These rules were also deliberately aimed at prohibiting ‘illegal raves’ (dance parties), both indoors and outdoors.¹⁵⁸ Section 52 of the Coronavirus Act 2020 gives the Secretary of State powers to issue directions restricting gatherings. The powers have not been used in England, where there has been a preference for using regulations under the Public Health (Control of Diseases) Act 1984.¹⁵⁹

87.  In September 2020, following a rise in infection rates, restrictions on public and private gatherings were reintroduced in England. These new restrictions prohibited social gatherings of more than six people, both indoors and outdoors (the ‘rule of six’).¹⁶⁰ On 5 November 2020, further regulations came into force, prohibiting any gathering of more than two persons, with limited exceptions such as childcare.¹⁶¹ These regulations were once again eased on 2 December 2020. Following the discovery of a new Covid-19 variant in December 2020 and the resulting surge in infection rates, in January 2021 the Government introduced the third national lockdown (see Part IV.A.1 above). It remained in place until 12 April 2021, where the rule of six was reintroduced.¹⁶²

88.  The Coronavirus Act 2020 confers both temporary closure and continuity direction-giving powers on ministers. ¹⁶³ Directions are published in the Official Gazette.¹⁶⁴ Schools were closed under temporary closure directions from 26 March 2020 until September 2020, however children having special educational needs and those of certain ‘essential workers’ could continue to send their children to school. Furthermore, temporary continuity directions issued on 1 June 2020 provided for limited opening of schools for children from certain school years, which occurred from 1 June 2020. A full reopening of schools, with social distancing guidance in place, occurred from September 2020. In January 2021, following the government’s stay-at-home instruction, schools were closed—except for children of essential workers and those with special educational needs. Primary school children returned to school on 8 March 2020.¹⁶⁵

89.  Primary and secondary schools were closed under temporary closure directions from 26 March 2020 until September 2020, however children having special educational needs and those of certain ‘essential workers’ could continue to send their children to school. Furthermore, temporary continuity directions issued on 1 June 2020 that provided for limited opening of schools for children from certain school years occurred from 1 June 2020. A full reopening of schools, with social distancing guidance in place, occurred from September 2020.

90.  The regulation of business hours comprised both mandatory closures and restrictions on operating hours. Non-essential business premises were by law required to close between 26 March and 15 June 2020.¹⁶⁶ Shops predominantly selling alcoholic beverages were also deemed essential businesses.¹⁶⁷ Regulations were further relaxed from 4 July 2020, allowing the reopening of holiday accommodation, and certain leisure settings. ¹⁶⁸ However, indoor venues where individuals are often at close proximity, such as nightclubs and spas, remained closed.¹⁶⁹ Though nearly all business closures were lifted by mid-July, various restrictions on operating hours, especially in the hospitality industry (pubs, bars, restaurants), came into effect due to concerns about a failure to observe physical distancing during late-night alcohol consumption. On 24 September 2020, pubs and restaurants were required to close at 10pm in England.¹⁷⁰

91.  All non-essential business premises were closed from 5 November 2020 to 2 December 2020, during the ‘second national lockdown.’ Restrictions were relaxed in early December 2020, but non-essential business premises were required to close again in January 2021, during the third national lockdown.¹⁷¹ On 12 April 2021, all nonessential retail, personal care premises, public buildings, indoor leisure facilities, and outdoors attractions and settings (such as hospitality venues, zoos, etc) reopened.¹⁷²

92.  Parks were not closed during the lockdown, though children’s playgrounds were closed between 23 March 2020 and 4 July 2020. Parks became havens for most citizens.

93.  There was no legally mandatory physical distancing requirement between members of the public. However, official guidance routinely created the impression of a legally mandatory two metre rule. Independent research on compliance attitudes revealed that over 90 per cent of the population believed there was a legally binding rule to that effect.¹⁷³ Furthermore, businesses in the hospitality and entertainment industry were required to maintain various social distancing protocols in place after the general lockdown ended. These would include limitations on persons being indoors, table-service, restrictions on queuing, and so on.

94.  The mandatory usage of face coverings was instituted for public transport on 15 June 2020, and in ‘relevant places’ from 24 July 2020,¹⁷⁴ with similar rules and dates in Scotland.¹⁷⁵ The ‘relevant places’ regulation required the public to wear face coverings inside shops, shopping centres, and transport hubs in England. The conditions, enforcement provisions, and ‘reasonable excuses’ for non-compliance broadly mirror the pre-existing legislation requiring masks to be worn on public transport. Although enforcement is a matter for the police and specified officials, Government guidance says: ‘[b]usinesses should take reasonable steps to encourage customer compliance.’¹⁷⁶ However, the Secondary Legislation Scrutiny Committee observed in its report on the measure that regulation 3(2)(b) ‘exempts shop managers and their employees from an obligation to wear a face covering. We can reasonably anticipate that this provision may present compliance and enforcement challenges where a shop worker, who is not wearing a mask, asks a member of the public to put one on.’¹⁷⁷ There has been some confusion over who is required to enforce the measures. Owners are permitted but not required to ask non-complying customers to leave, and some police forces declare that they will not intervene unless customers refuse to leave or turn violent.¹⁷⁸ The result has been that where neither shop owners nor police are minded to intervene, compliance is largely voluntary.

95.  Changes were made in the regulations on 8 August 2020 (widening of the number of ‘relevant places’), on 28 August 2020 (increasing of the cost of the fine for failure to wear a face covering), and on 23 September 2020 (imposing an obligation to wear face coverings in taxis and private hire vehicles, but also in bars, restaurants, theatres and pubs).¹⁷⁹

96.  In its report, the House of Commons Science and Technology Committee highlighted that the government did not employ a ‘precautionary approach’ with regards to face coverings and that it followed SAGE’s recommendations only two months after they were issued.¹⁸⁰ In addition, there was a significant time lapse between the Government’s announcement of an intention to change its face coverings policy, and the introduction of emergency regulations under the made-affirmative procedure. The delay was adduced as an example of the abuse of the made-affirmative procedure and failure to take parliamentary scrutiny seriously.¹⁸¹

97.  The general regulation-making powers under the Public Health (Control of Diseases) Act 1984 cannot be used to force a person to (a) submit to medical examination; (b) be removed to or (c) be detained in a hospital or similar establishment; or, and most notably, (d) ‘be kept in isolation or quarantine.’¹⁸² Such highly invasive actions must be taken on a case-by-case (ie person or group) instead of on a community-wide basis. Nevertheless, powers allowing the isolation, screening, and quarantine of individuals, carried out by the Secretary of State or by public health officials, were created under regulations taking effect from 10 February 2020.¹⁸³ In light of the restrictions in the 1984 Act, their vires may be doubted.¹⁸⁴ In Scotland the statutory basis for the isolation and quarantine of individuals was the Public Health etc. (Scotland) Act 2008.¹⁸⁵ The English regulations were repealed, and the Scottish Act essentially replaced, by the Coronavirus Act 2020, which substituted statutory powers under section 51, which inserts Schedule 21 (at nearly 30 pages) and which are bespoke for application to Covid-19. Under the provisions contained in Schedule 21, a ‘public health officer’—either already registered as such or designated as such by the Secretary of State—may direct or remove persons for screening and assessment, for a period of up to 48 hours. The exercise of such powers must be ‘necessary and proportionate’ and they are subject to an appeal to a magistrate’s court. If the test was ‘inconclusive’ or the public health officer has ‘reasonable grounds to suspect that a person is infectious’ they may impose such restrictions and requirements that they consider necessary and proportionate to protect the person or the public (paragraph 14). This includes confining them, restricting their work, movement, travel, contact with other persons, and putting them in isolation (paragraph 14). However, the schedule builds in safeguards (paragraph 15), including the mandatory frequent review of the restrictions and limitations on expanding isolation.

98.  Schedule 21 powers were regarded as invasive when adopted,¹⁸⁶ and its repeal was supported by the Loyal Opposition and other MPs (see Part III.A above). The Government’s reporting shows that they have been used 10 times since the Coronavirus Act 2020 came into force.

99.  England has implemented a system of ‘self-isolation’ that varied over the period. Initially guidance declared that ‘if you have had close recent contact with someone who has coronavirus, you must self-isolate if the NHS Test and Trace service advises you to do so.’¹⁸⁷ Regulations made on 27 September 2020 provided legislative footing. Any person who had tested positive or came into close contact with someone who had tested positive would be required to self-isolate for periods ranging on average between 10–14 days.¹⁸⁸ A legal challenge to the regulations arguing they amounted to a breach of the restriction in section 45(3)(d) of the 1984 Act that forbids using regulations to put persons in isolation or quarantine was rejected by the High Court. Lord Justice Hickinbottom held that ‘isolation and quarantine imply some form of required clinical management or supervision during the period of isolation/quarantine’ and that this ingredient was missing from the self-isolation policy and so it did not fall foul of the protections of the 1984 Act.¹⁸⁹

100.  Until December 2020, testing in the UK was regulated under a 2014 regime that was quite complex.¹⁹⁰ As a result, it was regarded as a barrier for the rapid entry of new private sector providers into the testing sphere considered necessary for the rapid expansion of testing capabilities. New regulations were introduced in December 2020 to speed up accreditation of private test providers, and these remain current.¹⁹¹

101.  In terms of performance, written evidence submitted by the British Medical Association (BMA) to the Public Accounts Committee of the UK Parliament claimed that ‘[l]ack of testing capacity in the early stages of the pandemic meant the UK missed a vital opportunity to suppress the virus. Testing capacity was initially slow to increase and has lagged behind other countries. In the initial stages, February and March 2020, the UK was slower at increasing its testing capacity compared to some other nations.’¹⁹² By September, SAGE had advised that due to the inability to turn around testing and notification results within 24 hours, NHS Test and Trace was having only a ‘marginal’ impact on the spread of the virus. It achieved that goal consistently in only 15% of cases in September 2020, and had reached only 32% of cases by January 2021.¹⁹³ The BMA also submitted, echoing widespread concern reflected in the media and public polling, that ‘[t]he extent of outsourcing to large firms and the unaccountable manner in which this has been done has had grave repercussions for patients, doctors and the NHS.’¹⁹⁴ It attributed such repercussions to a failure to integrate properly with the public health system, as well as delays and mismanagement of testing arrangements.

102.  The Public Accounts Committee nevertheless noted that between May 2000 and January 2021, NHS Track and Trace rapidly expanded UK testing capacity from around 100,000 to over 800,000 tests a day.¹⁹⁵ However, it also reported that by the end of October 2020, the average delay between a person presenting with symptoms for testing, and all their contacts being traced and advised to self-isolate, was 119 hours. This was later reduced to 78 hours, closer to the internal target of 48–72 hours.¹⁹⁶

103.  The UK enjoyed one of the most rapid rollouts of a nationwide vaccination programme worldwide. On 2 December 2020, the UK’s medical regulatory agency granted a ‘temporary authorisation’ allowing the Pfizer/BioNTech vaccine to be administered to patients. The first doses were administered on 8 December. Temporary authorisations were also granted for the AstraZeneca and subsequently the Moderna vaccines by 8 January 2021. The vaccination rollout was led by the Department of Health and Social Care and Secretary of State for Health and Social Care, Matt Hancock MP, working together with health ministers from the devolved administrations.¹⁹⁷ A minister for Covid-19 vaccination deployment was appointed by on 28 November 2020.

104.  Vaccines were delivered according to a published vaccine delivery plan.¹⁹⁸ The delivery sites included hospital hub sites, local vaccination service sites (based in primary care networks, community pharmacy sites, etc) and several large-scale vaccination centres hosted in sports stadiums, theatres, hotels etc.

105.  Prioritisation of vaccine groups was advised by scientists sitting in the Joint Committee of Vaccination and Immunisation (JCVI), a body in existence since 1963 and chaired since 2018 by Prof Andrew Pollard, who is also a leading member of the Oxford Vaccines Group that led the discovery of the Oxford/AstraZeneca vaccine.¹⁹⁹ The JCVI recommended that the vaccine should ‘first be given to residents in a care home for older adults and their carers, then to those over 80 years old as well as frontline health and social care workers, then to the rest of the population in order of age and clinical risk factors.’²⁰⁰ A nine-fold list of priority cohorts was developed based on JCVI advice. All four nations of the UK have followed JCVI advice.²⁰¹ Those with caring responsibilities, as well as the homeless and rough sleepers (ie those who may be forced to sleep outside), were given priority status.²⁰² By 14 April 2021, 32,444,439 people had received their first dose of the vaccine and 8,513,864 the second dose.

106.  While the Government is consulting on its plans to introduce mandatory vaccination for staff in care homes (see Part IV.A.10 below), mandatory vaccination has generally been shunned as a policy option by both the Health Secretary as well as the Prime Minister, who announced that ‘it is no part of our culture or our ambition in this country to make vaccines mandatory. That is not how we do things.’²⁰³ However, the Health Secretary has also refused to rule it out.²⁰⁴ Section 45E of the Public Health (Control of Disease) Act 1984 omits the power to require mandatory vaccination by way of public health regulations. Any such policy would therefore require a new Act of Parliament.

107.  The NHS Test and Trace system has been in operation since at least 27 May 2020,²⁰⁵ when guidance was published. Such guidance declares that ‘if you have had close recent contact with someone who has coronavirus, you must self-isolate if the NHS Test and Trace service advises you to do so’.²⁰⁶ The present legal basis of this obligation is addressed in Part IV.A.7 above.

108.  The most prominent concern nationally is over the failure of the system to perform its intended function.²⁰⁷ A report by the Public Accounts Committee published on 10 March 2021 highlighted NHS Test and Trace’s struggle to keep up with important surges in demand for contact tracing, both in September 2020, with the return of children and students to school and university, and in December 2020, for Christmas, while also being systematically under-used at other times.²⁰⁸ The resulting backlogs and longer turnaround times have had an impact on the efficiency of the system in breaking chains of transmission. Many have argued that the Test and Trace programme is a political debacle or even scandal, as although fully £37 billion has been budgeted for the programme, it is thought to have produced limited results.²⁰⁹

109.  The Public Accounts Committee noted that the impact of the NHS Test and Trace system on infection rates is debated.²¹⁰ The effectiveness of the system is dependent on individuals coming forward for testing, as well as on compliance with self-isolation requirements. Low compliance with these processes, especially during the period between the development of symptoms and the test results, has thus led to concerns regarding the efficiency of the NHS Test and Trace system.

110.  As early as 2 April 2020, the Association of Directors of Adults Services wrote to the Department of Health and Social Care (DHSC) to express their concerns relating to shortages of PPE, lack of testing for staff and residents, as well as contradictory messages over shielding measures. They expressed their concerns that care homes had been relegated to ‘an afterthought.’²¹¹ Such may have been reflected in initial guidelines published in February 2020, now withdrawn, claiming it would be ‘very unlikely that anyone receiving care in a care home or the community will become infected.’²¹²

111.  The DHSC ultimately published a significant amount of guidance for providers of adult social care, collected under the following topics: (1) providing and receiving care; (2) buying care and support through direct payments; (3) unpaid carers; (4) workforce; (5) planning care; (6) other relevant guidance, covering miscellaneous topics such as PPE, shielding, and care for the deceased.²¹³ Such guidance must be read alongside other relevant legislation,²¹⁴ the ethical framework for adult social care, and any equalities-based legislation. The obligations contained in the Care Act 2014 were relaxed under the Coronavirus Act 2020 in order to ease the pressure on care providers. It relieved local authorities from Care Act duties where ‘it is no longer reasonably practicable for it to comply ... and where to continue to try to do so is likely to result in urgent or acute needs not being met, potentially risking life.’²¹⁵ This must nevertheless not result in a breach of a resident’s human rights.²¹⁶

112.  Significant amongst such guidance was the DHSC’s care home admission guidance on 1 April 2021.²¹⁷ Amongst other things, it recommended that care home residents be isolated for 14 days, ideally in a separate wing or floor if possible. This strict procedure was implemented after significant initial backlash, in which untested care home residents were discharged from hospitals to free up very limited bedspace.²¹⁸ Furthermore, it noted that testing has long been available for both symptomatic and asymptomatic carers and residents—reinforcing that care homes should take advantage of this provision. It also imposed a high level of responsibility upon carers, that they should not only carefully monitor their residents for symptoms of Covid-19 and possible hospitalisation, but are also obliged to report the development of any such symptoms, as well as being required to wear a level of PPE which is proportionate to current levels of Covid-19 transmission.

113.  On 8 June 2020, Health and Social Care Secretary Matt Hancock announced the formation of a Covid-19 social care support taskforce which would ‘oversee delivery of the next phase of [the Government’s] plan for social care, ensuring care homes have the support, training, resources they need to control this virus.’²¹⁹ It made 52 recommendations, amongst which the free provision of PPE and local implementation of winter strategies were primary. An extension to the Infection Control Fund, a now £1.146 billion support package for care homes, was also strongly recommended. Such recommendations shaped the 2020–21 winter strategy.²²⁰

114.  The Joint Committee on Vaccination and Immunization (JCVI) recommended the deployment of an age-based approach to vaccination. ‘Residents in care homes for older adults and their carers’ became the first such group. This roll-out was largely successful amongst residents, with 95% receiving their first dose by the end of January 2021. Poor uptake among care home staff has led the Government to consult on plans to introduce mandatory vaccination for care home staff.²²¹

115.  The military have not played any role in enforcing public health regulations. The primary enforcement agencies, as with any law-enforcement, have been the police. The police’s declared strategy is based on the four ‘Es’—‘Engage. Explain. Encourage. Enforce.’²²² As of 28 February 2021, 1,158 people have been charged by the Crown Prosecution Service (CPS), of which 198 were incorrectly charged—an error rate of 17%. Incorrect charging is a matter of political interest in connection with the Constitution Committee’s inquiry into the use of Covid-19 powers.

116.  Violations of the public health regulations can also lead to a civil fine, known as a Fixed Penalty Notice (FPN). Between 27 March 2020 and 14 March 2021, 85,975 FPNs have been issued in England, with a significant increase in the issuing of such fines since the 2021 New Year as the police adopt a stricter approach.²²³ However, those issued with an FPN may challenge it. As of 22 September 2020, as many people had paid the fine as those who sought to challenge it.²²⁴

117.  The amount of the fine depends on the country in which the infraction occurs, as each nation has its own customs and political choices in respect of the use of civil fines:²²⁵

118.  In a review into enforcement in England and Wales, it was confirmed that between 27 March and 25 May 2020 English and Welsh police issued a total of 17,039 FPNs, or 3 per 10,000 residents. Of these, 57% were issued to young men aged between 18 and 24, and a disproportionate amount were issued to members of the Asian and Black communities who were 1.8 times more likely to have a notice issued to them than white people.¹⁷⁵ Interestingly, no further statistics over the unequal impact of enforcement on ethnic minorities have since been recorded, with a recent Parliamentary review into the impact of Covid-19 on BAME (Black, Asian, and minority ethnic) people remaining silent on this matter.²²⁶ The National Police Chiefs Council considered this evidence of the success of putting enforcement ‘last’, as it had in a four week period ending on 24 May recorded 134,188 incidents related to Covid-19 in which police had intervened.

119.  In Scotland the Crown Office and Procurator Fiscal Service (COPFS) is the sole prosecuting authority. It has not to date published statistics on prosecutions for violations of public health regulations. There is at the moment no public data on the number of prosecutions under either the public health regulations or the Coronavirus Act 2020.

120.  University College London’s (UCL) Covid-19 Social Study found that 96% of the 70,000 persons surveyed across the UK population self-reported to be ‘majority compliant’ with the regulations at all times during the pandemic.²²⁷ However, those reporting ‘complete compliance’ had long stood below 50%, although this trend towards complete compliance also increased to 56% in the 2021 New Year. Compliance varied with the severity of the crisis, with early 2021 seeing reported compliance on par with that at the beginning of lockdown restrictions.²²⁸

121.  The population has been more widely reluctant to engage in conducting regular testing. The UCL Study also found that just 18% of those aged 60 and above requested tests whenever they had symptoms, despite 75% of such group believing they had experienced symptoms at least once. They found that 43% of people overall have requested tests when they developed symptoms.²²⁹

122.  There has been a significant discrepancy between regions. Liverpool’s Merseyside region, for example, recorded the least compliance in police statistics, with 434 FPNs issued for every 100,000 residents between 27 March 2020 and 15 March 2021. This contrasts with Humberside in Yorkshire, where the figure stands at less than 50.²³⁰

123.  Of particular interest in the early stages of lockdown was the media reception to the Prime Minister’s then chief adviser Dominic Cummings’ decision to drive from London to Durham in breach of lockdown regulations. A study conducted by the London School of Economics and UCL found that 96% of the population was aware of this story, with 86% finding his actions ‘unjustifiable’ and 68% ‘angry’ with his actions.²³¹ It further found that just 16% believed it to be ‘ok to bend the rules when I need to’, 61% that ‘people in my local community bend the rules when they need to’, and 84% that ‘people in power bend the rules when they need to.’ Such statistics demonstrate high levels of personal confidence, as confirmed in a study in which 92% of people in England believed they had complied with regulations better than the national average.²³²

Prof. Jeff King, Faculty of Laws, UCL

Dr. Natalie Byrom, Legal Education Fund