As part of the response to the coronavirus pandemic, a number of statutory instruments have been made using the 1984 Act powers. In most instances, this subordinate legislation has been made without any prior parliamentary scrutiny.
This post considers briefly the regulation-making powers for health protection as they have been used for England. I other parts of the UK, similar powers have been used to make regulations.
This may seem to be
very "nerdy" material but it is legally vital. Failure to use a correct legal process would render regulations open to legal challenge and the possibility of the High court quashing them as "ultra vires" - that is, beyond the powers given by Parliament to the Minister by the enabling Ac.
What are the actual regulation-making powers in the 1984 Act?
The principal legislation-making powers in the 1984 Act are:
Part 2A section 45B - Health protection regulations: International Travel etc. The powers include making provision for "the medical examination, detention, isolation or quarantine of persons" - see 45(2)(b).
Part 2A section 45C - Health protection regulations: Domestic. These powers include "imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health" - see 45C(3)(c).
Part 2A section 45D places certain restrictions on the regulation-making powers and note also section 45E and section 45F. Section 45F tells us more about what regulations under 45B and 45C may or may not do. In particular there is 45F(3) - "Health protection regulations may, for the purposes of giving effect to an international agreement or arrangement, amend any enactment."
Recent regulations:
The various Health Protection Regulations ("the lockdown Regulations") were made using the powers in the 1984 Act - in particular, the power in section 45C.
The Health Protection International Travel Regulations ("the quarantine regulations") were made using powers in the 1984 Act sections 45B, 45F(2) and 45P(2).
The Health Protection Information for Passengers ("the information regulations") were made using powers in the 1984 Act sections 45B(1)(a) and (2)(e) and (g), 45F(2) and 45P(2).
Parliamentary Control:
Parliamentary controls over regulation-making under Part 2A are tucked away in section 45Q .
Section 45Q(1) sets a "default position" which is that an instrument containing Regulations under Part 2A is "subject to annulment." In other words, the Minister can just make the Regulations but, if minded to do so, Parliament could annul them.
I am grateful to Tom Hickman QC who drew my attention to the fact that the last time the House of Commons annulled a Statutory Instrument was on 24th October 1979 - The Paraffin (Maximum Retail Prices) (Revocation) Order 1979 (S.I. 1979, No. 797) - see Parliament Statutory Instrument.
The default position applies to regulations made under section 45B and so the Minister could make the quarantine regulations and they are merely subject to the possibility of annulment by Parliament.
This "default position" is subject to exceptions which are set out in the remainder of section 45Q.
One exception is when regulations are made under section 45C which is the legal basis for the lockdown regulations. In this case the regulations must be approved by parliament BUT there is an emergency procedure (section 45R) enabling the Minister to make the regulations if he is of the opinion, by reason of urgency, that it is necessary to make the order without a draft being laid before and approved by Parliament.
Regulations made using the emergency procedure expire after 28 days unless approved by Parliament but the 28 days does not include time when Parliament is either prorogued, dissolved, or adjourned for more than 4 days.
Comment:
The extensive use in the UK of delegated legislation is a long-standing concern - see, for example, the discussion at Institute for Government - Secondary legislation. Despite such concerns, the use of this form of legislation continues to expand.
The parliamentary controls applicable to the public health regulations have the effect of removing prior scrutiny by Parliament of what is undoubtedly a very restrictive regime. The quarantine regulations are simply subject to annulment and the lockdown was imposed by the minister using the emergency procedure. The same procedure has also been used to make amendments to the lockdown regulations.
The term "emergency procedure" is somewhat misleading and has been misunderstood by some commentators. This is not a general power for the Minister to legislate simply because there is a pandemic or other health emergency. It is a limited provision enabling the Minister to make certain regulations but those regulations will expire unless parliament subsequently approves them. A kind of "shoot first and let the questions be asked later" arrangement !
Even when it is available, the Minister does not have to use the emergency procedure. He could lay the regulations before Parliament and let them be scrutinised through the approval process.
The reader may find it of interest to see how use of the emergency procedure has related to the various recesses of Parliament this year:
Recess dates
|
Regulations made
|
13 February – 24 February
|
10 February - Health Protection (Coronavirus) Regulations 2020 (S.I.
2020/129). Those regulations were made on 10 February 2020 under powers
in the Public Health
(Control of Disease) Act 1984.
These Regulations applied to “potentially infected persons” and were
later revoked by the Coronavirus Act 2020.
|
25 March – 21 April
|
26 March - Original lockdown regulations made - The Health
Protection (Coronavirus, Restrictions) (England) Regulations 2020 - SI
2020/350
21 April – Amendment Regulations were made - The Health Protection
(Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 - SI
2020/447
|
6 May – 11 May
|
12 May – second amendment regulations made - The Health
Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2)
Regulations 2020 -SI 2020/500
|
20 May – 2 June
|
31 May – third amendment regulations made - The Health
Protection (Coronavirus, Restrictions) (England) (Amendment) (No 3)
Regulations 2020 - SI 2020/558
|
21 July – 8 September
|
Summer recess
|
Further reading:
The Hansard Society 2014 - The devil is in the detail - Parliament and delegated legislation
Law and Lawyers 14 June 2016 - Lord Judge: Ceding power to the executive
Institute for Government April 2020 - Parliament's role in the coronavirus crisis - author Raphael Hogarth.
WFD April 2020 - No quarantine for democracy - author Franklin de Vrieze, WFD’s Senior Transparency Adviser
Acknowledgment:
With thanks to those on Twitter who helped with my navigation through the complexities of section 45Q including JanetM, Nadette, Brigid Fowler and Tom Hickman.
Does anyone know when Parliament approved the Quarantine Regulations in force from Monday 8 June? @AdamWagner1 @TomRHickman @Barristerblog— ObiterJ (@ObiterJ) June 6, 2020
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