MPs are being urged to reject the ‘draconian’ Coronavirus Act when it returns for a vote later this month.

Charlie Jay is a freelance journalist with an interest in civil liberties.

The Coronavirus Act 2020 came into force last March, as an emergency response to the pandemic. But how long will it last?

The measures in the Act range from closing borders, postponing some elections and suspending the power to recall any MP committing a crime, to detaining anyone who might be infectious, and relaxing human rights safeguards in a range of settings.

From increasing surveillance and retention of DNA, to closing off care homes, critics argue the Coronavirus Act has created a range of new ‘draconian’ powers which have eroded civil liberties.

The Act marked the largest expansion of executive power in peacetime Britain. However, the government justifies this by describing measures as ‘reasonable, proportionate and based on the latest scientific evidence.’

But a close look shows our lives and rights have changed beyond recognition – with almost no parliamentary scrutiny.

What’s in the Act?

Depending on the advice of the four chief medical officers, the new powers in the Act can be switched on and off whenever ministers feel necessary. Although time-limited to two years, the government states it is possible to extend the Act’s lifetime ‘if it is prudent to do so’ (para 8), therefore keeping these powers at their fingertips indefinitely.

Some of the most far-ranging detention powers in modern legal history are found in schedule 21. It gives police, public health officials and immigration officers powers to forcibly detain, for up to 14 days (para 15.(1)), and take biological samples from anyone, including children, whom they have  ‘reasonable grounds’ to suspect of being ‘potentially infectious’ (para 7.(1)). 

As many Covid cases are asymptomatic, police could have unlimited freedom to detain just about anyone.

Schedule 22 provides powers to close premises, cancel events, prohibit gatherings and ban protests but has not yet been activated. Instead, the government has used powers under the Public Health Act 1984 to carry out these prosecutions.

However, this has not stopped confused police officers charging people under Schedule 22, and magistrates who do not know the law well enough have accepted the charges. In these situations, charges are rushed through, without proper scrutiny, leading to unlawful prosecutions.

Police are also regularly using the Coronavirus Act to break up socially distanced demonstrations outdoors, despite the risks of outdoor transmission being low.

What’s the alternative?

The UKs leading human rights organisation, Liberty, has drafted alternative legislation to the Coronavirus Act 2020, known as  the Protect Everyone Bill, which it says will address the ‘civil rights crisis’ caused by the pandemic and ‘prioritise support over punishment.’

Liberty’s Director, Gracie Bradley told Left Foot Forward: “The pandemic has shown how much we rely on each other, yet politicians in charge have responded with a strategy that creates distrust and favours punishing people instead of providing support.

“Those in power have failed to understand that we need to pull together and create strategies that protect everyone. A year into this crisis, we’re tired of waiting for alternatives, so we’ve come up with one ourselves.”

There are existing measures on the statute book that could be used instead. Two other alternatives to the Coronavirus Act, both of which contain sensible safeguards, are the Health and Social Care Act, 2008 and the Civil Contingencies Act 2004.

Powers in the Health and Social Care Act 2008 (HSCA 2008) s. 129-130 are very similar to those in the Coronavirus Act 2020, allowing ‘medical examination, detention, isolation or quarantine’ of a person who is suspected of being infectious.’ However, a magistrate must authorise the HSCA 2008 provisions, before allowing an individual to be detained by police. The Coronavirus Act has no such safeguards.

Similarly, the Civil Contingencies Act 2004 (CCA 2004) contains wide-ranging measures, enabling similar restrictions of movement and assembly CA 2020 but, crucially, with the added safeguard that they must be reviewed every 30 days.

Power corrupts

Last year, civil liberties and privacy campaign group Big Brother Watch launched the Two years? Too Long campaign and helped ensure a six- monthly parliamentary vote on the Coronavirus Act. They believe it’s time to remove the extra policing roles from the statute books, particularly ones that aren’t being used.

Madeleine Stone, Legal and Policy Officer for the group, said: “All the time [these powers] are sitting there they represent a danger to our rights. There’s been a lot of talk about ‘new normal’ recently, and we are deeply concerned these powers will remain in the statute books for a very long time to come,” she said.

Stone believes enforcing Covid rules through the police has been ‘unnecessary’: “People want to do the right thing, so using police to enforce these measures is counterproductive. It’s giving the police a whole new role in society, as public health officials, and that’s not what they are trained for.”

Parliamentarians are under pressure to repeal schedules 21 and 22 of the Coronavirus Act later this month. “We expressed concerns early on about these powers, and our worries have been justified. Unlawful use risks damaging trust in policing and the rule of law, and threatens our human rights, whilst having no benefit to public health,” Stone tells LFF.

Jonathan Lea is one of the founding members of Lawyers for Liberty, a group of legal professionals who monitor, educate and act upon potential legal issues raised by concerned citizens relating to the national coronavirus situation.

“I have become increasingly concerned as the UK government’s restrictions have continued to be extended. Lawyers for Liberty recently started a Facebook group for anyone wanting to join, and we have been inundated with all sorts of horrifying stories of people facing incredible injustices and infringements on what should be their essential human rights.

“This simply has to stop. I sincerely hope that the Coronavirus Act is repealed as soon as possible, before things get even worse for all of us,” he said.

“People should bear in mind Lord Acton’s infamous quote- ‘Power tends to corrupt, and absolute power corrupts absolutely.’”

To date, all powers in the Coronavirus Act have been used unlawfully, with every single prosecution being dropped.

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