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Adam Wagner
@AdamWagner1 5 years, 6 months ago 664 views

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A year ago, the idea that you could close every restaurant, café and pub in the capital without a Parliamentary vote or even a debate would have been unthinkable. Today we have allowed government by executive decree and it now seems normal. Covid lawmaking has corroded democracy

To explain: since March, the government has used the Public Health (Control of Diseases) Act 1984 to pass lockdown laws - over 60 (I have listed them here https://t.co/5Z1p3gVjbX).

The lockdown laws have imposed stringent restrictions on movement, freedom of association, family life, religion etc. But each and every lockdown law passed has used the super emergency procedure which allows the government to pass them without a parliamentary vote for 28 days

The government did this for months before MPs revolted at which point it promised to put any major changes before parliament first. It has done this since the three tiers in mid-October.

BUT...

(1) The govt is still only giving parliament about 12 hours to consider laws and the vote is a simple yes or no

(2) Changes to tiered areas are not considered major changes so these don't go to a vote until 28 days later by which time it has usually changed.

So where we are left is an almost complete democratic deficit:

(1) Hardly any votes/debates
(2) Debates so rushed and have no prospect of amendment that they become toothless
(3) Government deciding whether a change is "major" so even the anaemic scrutiny available is rare.

Important to note that I am not making a 'lockdown skeptic' argument here (though I think we should have fierce debates over any major restrictions on rights), but rather one about democracy and scrutiny.

For those who ask 'where have the human rights lawyers been when we are making these arguments' - I and others have been beating this drum since March. Ultimately it is for Parliament to wrest back control and 'sovereignty', to coin a phrase as courts will not come to the rescue.

The problem is that we have become used to this ‘emergency’ procedure being used. It didn’t need to be like this. Parliament could have developed a far more democratic approach through eg 14 day emergency procedure including amendments and committee scrutiny.

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Adam Wagner
@AdamWagner1

🚨The new lockdown regulations are here: coming into force on Thursday

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020

Analysis below as I read them (thread)

https://t.co/adPk9PsE0j

32 pages, 13,891 words...

As expected, "No person may leave or be outside of the place where they are living without reasonable excuse" - back to the language of the Mar 2020 regulations

Again, there is a *non-exhaustive* list (because: "include") of reasonable excuses, now referred to as "exceptions"

What are the exceptions? There are many. There are 13 listed, but a number have sub-categories of exception, particularly Exception 1 (leaving home necessary for certain purposes). Here they are, except I can't fit them into four screen grabs!

Here's number 5

You might notice that these are many more than in the first lockdown [screen shot from first lockdown regs below] - though some have made a reappearance. Basically this is a more detailed and complex set of reasons for people to not stay at home.

Adam Wagner
@AdamWagner1

This is a thread on human rights and the Coronavirus.

It will be a mixture of discussion, ideas and links and I will try to keep adding to it as things progress (THREAD)

I have been thinking about how human rights values and laws can help us traverse the next few months of deep crisis - across the planet.

We could 'suspend' or ignore human rights as a 'peace time nicety' as has happened in the past.

But to do so would be a huge error /1

As a preliminary, it is really, really important to understand that looking at the potential response to Coronavirus through a human rights lens does not generate any easy answers. I’m not going to offer any. /2

Another preliminary: as with response to terrorism (there are similarities here) it is natural that when people are frightened, critical voices raising ‘niceties’ like individual rights are seen as annoying and beside the point. They. Are. Not. We know that from history. /3

What can human rights offer? Well, for one thing this is exactly the kind of crisis which the modern human rights system was designed for.

I’m going to start with the general and then move onto the specific /4

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Adam Wagner
@AdamWagner1

🚨New lockdown regulations just published, in force tomorrow

The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021

https://t.co/L5jwlTDaIE

(Thread)

These are not a new set of regulations: they are amendments an old set of regulations

Which we thought were gone! But they are back

Welcome back No.3 regulations

A quick thing before we continue!

I have been analysing these laws for free for 9 months now - if you want to say thanks and have a few £ to spare please give to my @LawCentres fundraiser

They give free legal advice to people who need it

They also amend the All Tiers regulations

Oh god it's all amendments by paragraph references

Basically all of England now in Tier 4 and Tier 4 is amended but not by a huge amount

This really is a terrible way to make laws on the fly - who can possibly understand it?!

So, to explain, you need 2 documents open if you want to understand what is going on:

All Tiers regulations (Tiers 1-4, 2 December as amended) https://t.co/IraPQ112ak

And amendments https://t.co/L5jwlTDaIE

No sensible way of doing except by track changes, on it now, back soon

Adam Wagner
@AdamWagner1

Here is the terms of reference and panel for the "Independent Review of the Human Rights Act"

Some initial thoughts

Terms of reference:

- Entirely expected that the "take into account" duty, which has been interpreted by the UK courts as a duty to follow the European Court of Human Rights where it has clearly and constantly taken a particular line, is under review...

"The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy"

This is such a diffuse and difficult question to answer and ultimately depends on your definition of "policy"...

The framing of the question gives lie to this being a neutral 20-year "review". It's not, because the government plainly wants the outcome to be a finding that the HRA has led to courts "unduly" being drawn into areas of "policy"

There will be certain members of the panel, e.g. Sir Stephen Laws of the Judicial Power Project, who will argue strongly that the HRA has led to courts being "unduly" drawn into areas of policy.

Adam Wagner
@AdamWagner1

A short thread on why I am dubious that the government can lawfully impose charges on travellers entering the UK for quarantine and testing (proposed at £1,750 and £210)

1/

The UK has signed up to the International Health Regulations (IHA) 2005. These therefore create binding international legal obligations on the UK.

The IHA explicitly prevent charging for travellers' quarantine or medical examinations.

https://t.co/n4oWE8x5Vg /2

International law is not actionable in a UK court unless it has been implemented in law.

But it can be used as an aide to interpretation where a statute isn't clear as to what powers it grants.

See e.g. Lord Bingham in A v SSHD https://t.co/RXmib1qGYD

/3

The Quarantine regulations will, I assume, be made under section 45B of the Public Health (Control of Disease) Act 1984

https://t.co/54L4lHGMEr

/4

That gives pretty broad powers but I can't see any power to charge for quarantine. Perhaps it will be inferred from somewhere else in Part 2A?

But...

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