Power and the pandemic: civil liberties in the age of coronavirus.

AuthorRunswick, Alexandra

Responding to a national emergency or pandemic is urgent, dramatic and all-consuming. The ways in which a state responds to emergencies inevitably highlights the strengths and weaknesses of its system of governance. In Hungary, for example, measures have been passed that allow Victor Orban to rule by decree indefinitely and allow people to be jailed for spreading misinformation, while at the same time a bill has been brought forward that would end legal recognition for transgender people. (1) Meanwhile Jacinda Ardern, prime minister of New Zealand, has won plaudits for a quick response to the pandemic, her use of clear, empathetic language and for being willing to open up her government to additional scrutiny. (2)

The concern for those of us interested in the health of democracy in the UK is that crises exacerbate the well-known weaknesses of our system of government. What we saw with the passage of the Coronavirus Act, and the very hastily drafted health regulations, is an already powerful Executive being given the widest ranging powers in a generation, with very little scrutiny and oversight. The rights to leave or enter your country, to participate in free and fair elections and to be protected against arbitrary detention are the bedrock of a healthy democracy. The Act undermines all of these key tenets.

We are not just responding to the pandemic; we are also laying the foundations for what society looks like post-pandemic. This is why leaders such as Orban push boundaries, seeing how far they can go, while attention is elsewhere. This is why it matters that we are relying on delegated powers that are virtually impossible to scrutinise effectively. How do we make sure that civil liberties and human rights don't become casualties of the instability and fear that emergencies inevitably create? I suggest that there are three key tests that we should apply to any government's response to an emergency: proportionality and time limits, use of personal data, and openness to scrutiny.

Proportionality and time limits

In any emergency governments are likely to be granted most, if not all, of the powers they ask for. The speed with which emergency legislation is passed, and the pressure on legislatures to put responding to a crisis ahead of scrutiny and due process, means that governments are often given far more power than the crisis actually requires. Ensuring that any new powers are proportionate and tightly time limited is essential to protecting human rights as well as respecting the rule of law.

Is the Coronavirus Act 2020 necessary? There were already sweeping emergency powers in place in the form of the Civil Contingencies Act 2004, which addressed a very wide range of possible eventualities: terrorist attacks, protests, environmental events--and human and animal disease pandemics. In other words, legislation already existed that was designed to tackle circumstances like the coronavirus. But rather than utilise this extensively scrutinised framework, the government chose to draft new legislation and rush it through parliament in three days. The result is that the new powers only need to be renewed every six months, instead of every thirty days, and only by the House of Commons, where the government has a majority and is unlikely to be defeated. Although in theory there is a sunset clause for the Act, this is easy to circumvent because some of the powers can be extended by 'any relevant national authority'. This lack of rigorous time constraint makes mission creep, and abuse of our rights, significantly more likely.


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