COVID passes and the ongoing abuse of ‘urgent’ law-making

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This is cross-posted from the UK Constitutional Law Association Blog where it was originally published.

Later today  the House of Commons will consider the Health Protection (Coronavirus, Restrictions) (Entry to Venues and events) (England) Regulations 2021, which introduce a system mandating the use of COVID passes (or, in formal parlance, ‘COVID status certifications’). These Regulations are being made using the emergency provisions contained in s. 45R of the Public Health (Control of Disease) Act 1984.

COVID passes allow one to verify that they have been vaccinated and, in the absence of vaccination, to show that one has had a negative test (including we believe a negative NHS-provided antigen (‘lateral flow’) test the result of which has been reported), or that one has recovered from COVID and is still within a perceived-‘natural immunity’ window.

COVID passes have been available for use in the UK for some time (since May 2021), and many people will be accustomed to using them to travel abroad or to enter indoor settings in other countries. Since July 2021, some settings in England, like nightclubs, have been ‘encouraged’ but not required to use COVID passes. In addition, COVID passes are already in use in Scotland, Wales, and Northern Ireland although ‘natural immunity’ is not accepted as an alternative to certified vaccination in Scotland.

From 15 December a COVID pass will be required in England for entry into some indoor locations and indoor and outdoor events that have large numbers of attendees. Unlike in many other jurisdictions, they are not going to be required in order to be allowed to enter locations like a bar, café, restaurant, cinema, shop etc where, instead, the use of face coverings is either advised or required. These measures, together with others, form part of what is known as ‘Plan B’.

Nevertheless, their imminent introduction in England is controversial, partly because their implications for human rights are complex and contested, partly because some people consider them to be ineffective against the apparent scale and nature of the Omicron variant, and partly because of how they are to be introduced. While the questions of proportionality are delicate, and the epidemiological and public health questions are beyond our expertise, the issue of how requirements to use these passes are to be introduced are germane.

The Government’s Approach

The possibility of mandating COVID passes has been in circulation for some time. In February 2021 the Government pledged to “review whether COVID-status certification could play a role in reopening our economy, reducing restrictions on social contact and improving safety”. Furthermore, in September 2021 the mandatory use of COVID passes was mooted, only for the government to change its mind on this. However, the exact nature of (a) when they might be required, (b) how they could be enforced, and (c) what if any sanctions there would be for failing to either check or produce them if required by law have never been set out. Indeed these details only became known to the public, and to the MPs who will vote on them, when they were laid before Parliament at 3pm on Monday the 13th. Given that these Regulations not only mandate the use of COVID passes but also create criminal offences, bestow powers to impose Fixed Penalty Notices, and introduce significant enforcement orders, it is very clear that these are more than ‘mere’ technical regulations. They make substantive changes to the law and will have far-reaching implications for all those to whom they are applied.

In the light of the Omicron variant, the Government has opted to introduce the mandatory use of COVID passes in some settings by means of an emergency piece of secondary legislation to be debated by Parliament today and to come into force on December 15th. Thus, while for almost a week MPs have known the broad policy justifications for introducing the COVID pass, and have in many cases already made it clear how they will vote, with a large Conversative backbench revolt predicted and Labour Party support pledged, the detail of the law was not known until yesterday afternoon, giving MPs very little time with the text of the proposed law before they must vote on it. As a result, the likelihood of meaningful scrutiny being imposed on the law and its likely operation is extremely slim. As with a great deal of COVID-19-related law, Parliament is essentially being presented with a fait accompli by government, has insufficient time to consider it, has had limited opportunities to seek to shape the policy direction or the content of the law, and is being pressed into action as, effectively, a rubber stamp rather than a meaningful source of scrutiny and accountability.

A Different Approach is Possible

One does not have to have a strong view on the desirability, proportionality, or acceptability of COVID passes to be concerned about this. Not only is this significant piece of law being introduced through secondary legislation, but what we see is the continuation of a practice of pandemic law-making that systematically marginalises Parliament in ways that both we and others have expressed concern about in the past (see e.g. House of Lords Select Committee on the Constitution). This is all the more concerning in the context of COVID passes when one realises that it is entirely unnecessary both because the alleged urgency is manufactured, and because the substantive measures are far reaching. In other words, they reflect what Tasneem Ghazi has described as procedural and substantive abuses of claims of urgency.

As already mentioned, COVID passes have been under discussion for almost a year, and in operation (albeit on voluntary bases) for more than half a year. They are not new. What is new is requiring them for certain settings.

That such passes might, at some point, be mandated has been under consideration since February 2021, and there is no reason whatsoever why a legal framework to govern them could not have been developed before now.

It is quite possible to design, propose, debate, and pass a piece of primary legislation and provide within it that certain powers it contains (like the power to mandate COVID passes in certain locations) would come into force only upon a declaration of the relevant minister that the measures are required at the relevant time, or subject to the detail of such requirements (like exactly what venues they would be mandated for) being laid down in a piece of secondary legislation. It would even be possible for this declaration to be subject to Parliamentary control, perhaps coming into force for a period of week but requiring a positive resolution to continue in force.

Similarly, it is quite possible to publish a draft Bill, subject it to scrutiny and debate, and resolve to promulgate it if the exigencies to which it speaks emerge. Indeed, in the counter-terrorism context such a Bill—the draft Enhanced Terrorism and Investigation Measures Bill—has been on the books for the last decade, ready to be voted on by Parliament and come into immediate effect if the Home Secretary considered there were exceptional circumstances in which the measures it contains would be needed.

Such a scheme would allow for the design and policy underpinnings of the law to be subject to scrutiny, but also for the instrument or tool that it has already been agreed could in principle be important to advance a policy objective to be triggered quickly and in response to emerging epidemiological concerns. This kind of legislative scheme would enable a better balance to be struck between the urgent need to act in the light of fast-changing circumstances, the constitutional imperative for proper parliamentary scrutiny, and the democratic imperative for restrained government use of delegated law-making. The fact that the Government does not want to do the hard politics of justifying a policy unpopular with their backbenchers is not justification for eschewing such options. Indeed, the processes of justification, persuasion, and majority-building are the essence of law-making in a parliamentary democracy.

The Concept of Urgency Abused

Even these two, briefly outlined, alternative approaches indicate that the apparently constant cycle of emergency secondary legislation to which we have become accustomed in the pandemic is not inevitable. Government is not only able but arguably compelled to shift its approach to pandemic law-making away from responsive, emergency law-making and towards a crisis-management approach.

Law-making in crisis-management mode seeks to plan for likely exigencies, to include Parliament and experts in the process of forecasting and seeking to design legal and policy options to respond to those exigencies, and to put in place legislative frameworks that are robust, scrutinised, debated, and effectively designed so that foreseeable events—like surges, or vaccine hesitancy, or a particularly transmissible variant of an infectious disease—can be responded to without unnecessary recourse to emergency law-making.

It has always been clear that the disease known as ‘Coronavirus’ would mutate, and that highly transmissible and perhaps vaccine-resistant mutations would emerge. It has long been clear that there were circumstances in which COVID passes might be identified as a necessary part of the public health response to the disease. The urgency that is now claimed and which justifies the emergency introduction of their mandatory use is as much a product of poor legislative planning as it is of the rapidly changing epidemiological situation.

Almost two years since the identification of this disease, and close to 20 months since the Coronavirus Act 2020 was passed by Parliament, the UK government’s continued reliance on claims of de facto emergency to push through insufficiently scrutinised secondary legislation that introduces significant changes to everyday life is increasingly difficult to justify.

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