The legality of the University's action was questioned with comment that, in the absence of statutory authority, the students might have been "falsely imprisoned" - see Evening Standard 28 September.
False imprisonmentis a tort at common law. All that is necessary for the tort to arise is for a person to show that they were directly and intentionally deprived of their liberty, whereupon the burden shifts to the defendant to prove that the deprivation was lawful. The tort is "actionable per se" - in other words, without proof of actual damage. False imprisonment can also be a criminal offence - see Law Commission.
On Monday 28 September - The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the isolation regulations) - came into force. These Regulations impose isolation requirements if a person has been notified (other than by means of the NHS Covid 19 smartphone app) of a positive test for coronavirus.
These Regulations were "made" by the Minister (Mr Hancock) at 5 pm on 27 September. They were "laid before Parliament" on 28 September and came into force at 12 am on 28 September. The power to make such Regulations is the Public Health (Control of Disease) Act 1984 which was amended in 2008 to bring the law in the UK in line with International Health Regulations.
Public Health Regulation and Parliament:
The 1984 Act contains what is described as an "Emergency Procedure" - section 45R - which enables the Minister to make regulations where he is of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft having been laid before, and approved by a resolution of, each House of Parliament. This emergency power has been used on numerous occasions during the government's response to the pandemic. The continual use of the power has been criticised including by this blog - Ministers and their law-making powers for Public Health (7 June 2020).
The Coronavirus Act 2020 was rapidly enacted in March 2020 but contains a requirement for parliament to review the Act after 6 months - Coronavirus Act 2020 s.98. The Act received Royal Assent on 25 March and the review is therefore due.
It is reported that MPs plan to use this opportunity to bring about greater parliamentary prior scrutiny of public health regulations made under the 1984 Act. - BBC News - Tory MPs bid to increase scrutiny over coronavirus rules.
The Minister does not have to use the "emergency power" (section 45R) but has chosen to do so throughout the pandemic. The result is that parliament is cut out of any role in prior scrutiny though it must ultimately approve the regulations - section 45Q. Approval of statutory instruments is usually little more than a formal event with minimal debate.
Giving MPs an opportunity to debate planned legislation before it comes into force might result in improvements to the law and perhaps a number of features of concern might be avoided such as the imposition of large fixed penalties which, in some instances, can be as much as £10,000. On any view, the process would be much more democratic than continued use of what amounts to little more than Ministerial decree. Nonetheless, the need to act swiftly in response to developments is also crucial. A balance has to be struck.
An important contribution to this question is by Dr Ruth Fox at Hansard Society - "Building on the Brady amendment: how can Parliament scrutinise coronavirus regulations more effectively." Dr Fox points out that the core problem is how to balance the government's understandable need to act urgently when necessary, with the proper demand of Parliament to consider and vote on regulations in a timely way and, whenever possible, before they come into force. To achieve a balance, a new form of scrutiny process involving both Houses of Parliament is suggested.
Are the Isolation Regulations lawful?
When secondary legislation is made, the lawyer considers the statutory powers under which the Minister purports to act. The latest isolation regulations state that they are made by The Secretary of State in exercise of the powers conferred by sections 45B, 45C(1) and (3)(c), 45D, 45F(2), 45P and 45T(6) of the Public Health (Control of Disease) Act 1984 Act.
The question of whether the Regulations are lawful was raised on Twitter by Jeff King (Professor of Law at UCL and Legal Adviser to the House of Lords Constitution Committee). The question is helpfully discussed in a Twitter Thread by Tom Hickman QC (Professor of Public Law at UCL).
Should there be restrictions?
Given the economic losses incurred due to restrictions imposed by government it is unsurprising to find argument that restrictions either ought not to have been imposed in the first place or that they must not be continued. The economic and social impacts have been massive: perhaps incalculable. That is before the likely impact of leaving the EU manifests itself once the transition period is over at the end of the year. (UK-EU future relationship negotiations are on-going). A leading proponent of this view is Lord Sumption - a former Justice of the Supreme Court - The Times 13 September 2020.