044 045 Constitutional credibility: how Covid legislation undermined our democracy Charlie Kingsford Although having seemingly rescinded to the deepest recesses of our minds, the threat of the Covid-19 Pandemic still lives on. Its influence or legacy, even now, is particularly relevant within the UK’s political sphere and the rule of law that upholds our democracy. Simply put, there are deep-rooted constitutional issues that have laid silently beneath the surface and, only thanks to the pandemic, have risen to our attention. This article will delve into the intricacies of the legislation – namely the 1984 Infectious Diseases Act and the 1998 HRA (Human Rights Act) – and seek to explain the ostensible democracy of which we are part. Further, it will provide an overview of the deeds that undermined core principles of our constitution (such as the sovereignty of Parliament), whilst explaining why it would be hard to find a shred of credibility within the actions of our politicians. Ultimately, did the Executive’s response to Covid uphold the fundamental democratic values on which modern western society rests? In order to develop a better comprehension of the depth of the issues faced by our system, and this article in general, it would be unwise to skip past some of the concepts that uphold the basic functioning of Parliament and politics in general. This article will extensively explore statutory instruments: secondary pieces of legislation that change or amend existing acts and are usually passed by negative or affirmative procedure. The core constitutional principle of Parliamentary sovereignty will also play a key role in deciphering why, at times, actions taken during lockdown failed to uphold our democratic values. Parliamentary sovereignty, as A.V. Dicey puts it, is the idea that only Parliament has ‘the right to make or unmake any law whatever.’ Finally, there is the age-old question of individual vs collective rights or, in other words, whether rights held by a group of people outweigh those individually held by its members. It would be somewhat straightforward to skim the surface of the frankly shocking political fiascos that uprooted any kind of integrity left within the wider Tory cabinet between 2020 and 2021; including Partygate and Hancock’s mishap, to name just a couple. However, to understand the scale of how dangerously compromised the UK’s political and legal system has become, we must step back to the 80s. The Public Health (Control of Diseases) Act, passed in 1984, gives the Executive the power to pass statutory instruments (SIs) ‘without a draft having been laid and approved.’ All a minister would have to do to impose regulations would be to issue a ‘declaration that by reason of urgency’ they believe the SI must be passed. In essence, the law gives the Executive the power to bring regulations into force before they have even been seen, let alone approved by Parliament. Fundamentally, this clearly threatens Parliamentary Sovereignty. By bypassing the scrutiny of parliament – the body with the largest democratic mandate in the country – lockdown rules essentially became the product of an elected dictatorship – something synonymous with anachronistic, dysfunctional countries of the past. Even more frustratingly, the Tories were in no rush to allow Parliament to scrutinise legislation even once it had been implemented for the public to abide by. Secondary legislation passed in May 2020 was only reviewed by the commons committee 4 weeks after it had been implemented in June. This means that legislation that had had no real democratic scrutiny ruled over the lives of so many for almost a month. With this in mind and before even beginning to delve into the effects of legislation, it’s evident that, as Caroline Lucas (Green MP) explains, the ‘UK urgently needs democratic renewal’ if it wants to uphold the fundamental democratic values the people of Britain deserve. In recent times, the HRA – the act that encompassed the ECHR (European Convention of Human Rights) into the UK’s constitution – has come under tremendous stress and inspection not least thanks to Brexit and the notion of a British Bill of Rights. This incredible scrutiny and controversy is no different when it comes to its role within legislation, properly or improperly, passed during the covid years. Article 2 of the HRA is arguably the most significant in the entire document; it explicitly reads ‘everyone’s life should be protected by law.’ Effectively, this means that, through legislation, the government must protect everyone’s right to life. Considering this, there can be no doubt that, without government intervention, there would have been more loss of life during the pandemic. Of course, there could be debate surrounding the success of rules put in place, but the overarching denominator is that the government sought to uphold article 2 and thus, in this sense, didn’t violate the HRA. On the other hand, the breadth of the HRA means that the government infringed on individual rights. Article 8 means that ‘everyone has the right to respect for his private and family life, his home life and his correspondence.’ Notably, this includes the right to maintain family relationships, for families not to be separated without due process and to permit regular contact. According to Parliament’s website, Johnson’s policy to ‘limit’ visitors into care homes ‘undoubtedly constitutes an interference with article 8 of the HRA.’ However, being a qualified right, article 8 can be restricted by law where circumstances are necessary. This means the government were able to decide when and where they were able to violate article 8. This poses a worrying question in whether the collective right outlined by article 2 outweighs the individual rights of article 8. Furthermore, where was the point at which circumstances were no longer ‘necessary’ and as such, the government should not have interfered with article 8? There is simply no definitive answer to either.
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