Lord Sumption:

I have submitted a memorandum in writing about the framework in the United Kingdom. It consists of three pieces of legislation, one of which is the Civil Contingencies Act 2004, which is a general emergency powers legislation and covers, among other things, public emergencies. The second is the Public Health (Control of Disease) Act 1984, which, in its current form, dates from 2008 when there was an amendment that introduced the powers which are currently relevant. The third is legislation passed in March of this year specifically to deal with the coronavirus, entitled the Coronavirus Act 2020. It is concerned mainly with the financial implications of combatting the coronavirus crisis, but also contains some provisions governing police powers, control of movements and so on.

The United Kingdom has rather controversially opted for the public health Act as the legal basis for the measures it has taken. The reason this is controversial is that many lawyers, including me, consider that this Act does not confer specific powers on the Government to impose a lockdown. It contains a number of specific powers, but not that one. However, there has been no effective legal challenge to what the Goverment has done and that is the basis on which it has happened. This is the only piece of legislation relevant to what the UK Government has done.

In my memorandum I have suggested that the United Kingdom experience has two main lessons for other jurisdictions. First, if the Irish Government proposes to impose measures that drastically interfere with personal liberty, it will need to be absolutely specific about it in the primary legislation. The UK legislation is only specific enough in the case of the Civil Contingencies Act 2004. The Act which the United Kingdom Government has chosen to use is not specific. I am not an authority on the law of Ireland. However, my understanding is that the matter is governed primarily by amendments to the Heath Act 1947, which were enacted in Ireland in March of this year, and that section 31(a) of that does confer specific power to impose a lockdown. That is one mistake made in the United Kingdom that has not been made in Ireland.

The second lesson which I would suggest arises from the UK experience is that if the Government is going to confer extremely drastic powers on the Executive or Ministers, it is extremely important to have a very high level of parliamentary scrutiny. These powers should only be available subject to parliamentary confirmation and regulation and they should have a very limited duration and be open to renewal. It seems to me that for democracy it is absolutely fundamental that the Legislature should not forfeit pretty well day-to-day control of what Ministers are doing with powers which in any normal circumstances would be regarded as inconsistent with basic democratic laws. I have read the Health Act 1947 of Ireland and while I must emphasise that I am not an authority on Irish law, it seems to me that the provisions for parliamentary scrutiny are virtually non-existent. That seems to me, as a democrat, to be questionable. I think that is all I need to say.