Emergency times require emergency measures. That can hardly be in dispute. The Covid-19 outbreak is unquestionably an emergency. Entire populations are at risk from the disease, some groups acutely so. This is a totalising event. Exceptional measures are needed, in principle and in practice, here and in other nations, to ensure the safety of all the people and to maintain as comprehensive, orderly and effective a response to the crisis as can be achieved.
The British government’s principal emergency measure was published on Thursday. The coronavirus bill is a vast piece of legislation. It runs to 328 pages. The explanatory notes run to a further 73. Both show signs of hurried drafting. It confers powers on the state to reorganise and control people’s lives, and to set traditional freedoms aside, in ways that are unprecedented since the wartime emergency powers of 1939-45. The government proposes to get all the stages of the bill through the House of Commons on Monday and to put it on the statute book by the middle of next week. The Labour opposition is supporting it.
The bill is necessary. We accept that. But it is all the more essential that it is properly scrutinised by MPs. This did not happen when wartime emergency powers were rushed through parliament in 1914 and 1939, with long-lasting and controversial effects. But it needs to happen now. This is an emergency on a par with war, but it is one of a very different kind. It directly affects everyone’s entire way of life.
The powers set out in the bill are vast. Ministers are given wide authority to govern by regulations that will not be properly scrutinised. The issues range from the NHS and the cremation of the dead through food supplies and transport to legal proceedings, elections and public order, as well as powers over the infectious. The overarching approach of the bill is to mobilise against the outbreak by removing checks, diluting procedures and strengthening powers. But the powers outlined in the bill are stuffed with potential civil liberty, privacy, surveillance and data protection issues.
The bill’s starting point is the very real need to mobilise people and resources to strengthen the NHS in the face of the emergency. But the issues and implications in the bill go beyond public health. In section 49, the government confers a power on police and immigration officers “to direct individuals to attend, remove [a potentially infected person] to, or keep them at suitable locations for screening and assessment”. Though the origins of this section lie in legitimate public health concerns, it raises extended issues of powers of arrest, search and detention. In the past, such powers have repeatedly been civil liberty minefields regarding issues such as vagrancy and suspicious behaviour. These will need to be transparently applied and tenaciously monitored in ways that earlier powers were not.
It is therefore vital that parliament should have enough time to debate the coronavirus bill. That is not the case under the government’s proposed timetable, agreed with Labour. There is huge pressure to get the bill into law so that its powers can be used. So the first and most important overarching change that should be made to the bill is to introduce a sunset clause. The bill is set to be enacted for two years. This is too long. The various powers should cease unless parliament votes to renew them – and has the opportunity to amend them – at intervals of six months. In a related reform, parliament should also seize this opportunity to change its antique, unhealthy voting system of queueing in lobbies, and introduce electronic voting.
Legislate in haste but repent at leisure is no idle warning. Many powers from the 1939-45 war remained in force far longer in postwar peacetime than in the war years themselves. The last of them only disappeared for good in 1964. Anti-terrorism legislation and emergency powers in Northern Ireland have required renewals of this kind, and properly so. These are extraordinary times and they require strong collective action by the state and the people. But they do not require powers that end up creating as many problems as they solve, and which could have been resolved by proper legislative scrutiny.
