Chapter 13: Legislation and enforcement

Introduction

¶13.1. Under the UK's devolution settlements, health (including public health) has been a devolved matter in Scotland, Wales and Northern Ireland since 1999. The decision by the UK government to deploy public health legislation, rather than the Civil Contingencies Act 2004, brought the practical consequences of devolution into sharp focus. It exposed significant challenges in balancing the devolved nature of public health with sufficient coordination and parliamentary scrutiny.

¶13.2. This chapter examines the legislative framework used during the Covid-19 pandemic, including the heavy reliance on secondary legislation, which enabled speed but limited scrutiny. It also considers the public's confusion about the rules, as well as the challenges in enforcement, as a result of the complexity of and frequency in amendments to coronavirus laws, compounded by differences across the four nations of the UK and the vagueness of some laws that left too much open to individual interpretation.

The legal framework for health emergencies in early 2020

¶13.3. At the time the pandemic struck, the UK had three potential legislative routes for managing a public health emergency:

the Civil Contingencies Act 2004, which provides broad emergency powers for managing national emergencies;¹¹ Civil Contingencies Act 2004 (https://www.legislation.gov.uk/ukpga/2004/36/contents)
existing public health legislation, such as the Public Health (Control of Disease) Act 1984, which is designed for managing infectious diseases;²² Public Health (Control of Disease) Act 1984 (https://www.legislation.gov.uk/ukpga/1984/22/contents) and
new primary legislation.

Civil Contingencies Act 2004

¶13.4. The Inquiry's Module 1 Report described the multitude of institutions, structures and systems responsible for pandemic preparedness, resilience and response – many of which were established under, or governed by, Part 1 of the Civil Contingencies Act 2004.³³ Module 1: The resilience and preparedness of the United Kingdom, UK Covid-19 Inquiry, July 2024, Chapter 2 (https://covid19.public-inquiry.uk/documents/module-1-full-report)

¶13.5. Part 2 of the Civil Contingencies Act 2004 allows the UK government to make regulations for the entire UK in response to an emergency, without prior parliamentary scrutiny.⁴⁴ An emergency is defined in section 1 of the Civil Contingencies Act 2004 (https://www.legislation.gov.uk/ukpga/2004/36/ section/1) to include events and situations that threaten serious damage to human welfare or the environment, as well as war or terrorism which threaten serious damage to the security of the UK. The explanatory notes to the legislation give examples of relevant emergencies, including "a terrorist attack, disruption of fuel supplies, contamination of land with a chemical matter and an epidemic".⁵⁵ Civil Contingencies Act 2004, Explanatory Notes, para 39 (https://www.legislation.gov.uk/ukpga/2004/36/notes/division/5) Any regulations may, for example, prohibit or require movement to or from a specified place, prohibit assemblies or other activities including travel and create offences relating to compliance.⁶⁶ Civil Contingencies Act 2004, section 22 (https://www.legislation.gov.uk/ukpga/2004/36/section/22)

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¶13.6. Given the far-reaching scope of the Civil Contingencies Act 2004, several safeguards were built into its framework:

A 'triple lock' test: Before emergency regulations can be made, three requirements must be met:

― Emergency: An emergency must have occurred, be occurring, or be about to occur. ― Necessity: It must be necessary to introduce emergency measures to prevent, control or mitigate the impact of the emergency. This requirement is only met if existing legislation is inadequate (due to delay or inefficacy). ― Urgency: There must be an urgent need for the provisions.⁷⁷ Civil Contingencies Act 2004, section 21 (https://www.legislation.gov.uk/ukpga/2004/36/section/21)

Time limits: Emergency powers lapse at the end of 30 days, unless renewed.⁸⁸ Civil Contingencies Act 2004, section 26 (https://www.legislation.gov.uk/ukpga/2004/36/section/26)
Parliamentary oversight: Regulations must be laid before the UK Parliament as soon as is reasonably practicable, and they lapse at the end of seven days unless approved.⁹⁹ Civil Contingencies Act 2004, section 27 (https://www.legislation.gov.uk/ukpga/2004/36/section/27)

¶13.7. The UK government ultimately decided that these safeguards – particularly the necessity and urgency requirements – made the Civil Contingencies Act 2004, which is generally regarded as a 'last resort' provision, unsuitable as a legislative vehicle for the response to the Covid-19 pandemic. The UK government opted instead to rely on existing public health powers and bespoke legislation as an alternative way to bring secondary legislation into effect.

Public health legislation

¶13.8. In both England and Wales, the Public Health (Control of Disease) Act 1984 provides the primary legal framework for managing infectious diseases.¹⁰¹⁰ Public Health (Control of Disease) Act 1984 (https://www.legislation.gov.uk/ukpga/1984/22/contents) Under Part 2A of the Act, ministers may make:

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domestic health protection regulations (under section 45C) aimed at preventing, protecting against, controlling or responding to the spread of infectious diseases or contamination – this might include, for example, imposing restrictions on gatherings, travel and school attendance;¹¹¹¹ Public Health (Control of Disease) Act 1984, section 45C (https://www.legislation.gov.uk/ukpga/1984/22/section/45C), as amended by the Health and Social Care Act 2008 (https://www.legislation.gov.uk/ukpga/2008/14/contents) and
international quarantine and isolation regulations (under section 45B) to allow for the isolation of people who are, or may be, infected or contaminated and the quarantine of those exposed to a disease or contamination to prevent its spread.¹²¹² Public Health (Control of Disease) Act 1984, section 45B (https://www.legislation.gov.uk/ukpga/1984/22/section/45B), as amended by the Health and Social Care Act 2008 (https://www.legislation.gov.uk/ukpga/2008/14/contents)

¶13.9. In Scotland, the Public Health etc. (Scotland) Act 2008 contained equivalent regulation-making powers for the Scottish Government in relation to international travel.¹³¹³ Public Health etc. (Scotland) Act 2008 (https://www.legislation.gov.uk/asp/2008/5/contents). Section 94 of the Public Health etc. (Scotland) Act 2008 is equivalent to section 45B of the Public Health (Control of Disease) Act 1984 (https://www.legislation.gov.uk/ukpga/1984/22/section/45B).

¶13.10. In Northern Ireland, public health powers are governed by the Public Health Act (Northern Ireland) 1967, which allows the Department of Health (Northern Ireland) to make regulations to prevent the spread of infectious diseases.¹⁴¹⁴ Public Health Act (Northern Ireland) 1967, section 23 (https://www.legislation.gov.uk/apni/1967/36/section/23) However, the legislation lacks some of the more detailed provisions found in the frameworks of the other nations.

¶13.11. When making new, or amending existing, public health regulations under the public health legislation, the level of parliamentary scrutiny applied depends on the content and urgency of the changes being made as follows:

Draft affirmative procedure: Regulations require approval by the relevant legislature (ie the UK Parliament, the Scottish Parliament, the Welsh Parliament or the Northern Ireland Assembly) before becoming law.¹⁵¹⁵ Public Health (Control of Disease) Act 1984, section 45Q(2) (https://www.legislation.gov.uk/ukpga/1984/22/section/45Q)
Made affirmative procedure (or the 'confirmatory procedure' in Northern Ireland): Regulations take immediate effect in urgent cases but require parliamentary approval within 28 days to remain valid.¹⁶¹⁶ Public Health (Control of Disease) Act 1984, section 45R(1)-(4) (https://www.legislation.gov.uk/ukpga/1984/22/section/45R)
Made negative procedure: Regulations with less significant effects on individuals or property take effect immediately and remain law unless rejected by the relevant legislature within 40 days.¹⁷¹⁷ Public Health (Control of Disease) Act 1984, section 45Q(1) (https://www.legislation.gov.uk/ukpga/1984/22/section/45Q)

¶13.12. During the pandemic, the made affirmative procedure became the norm. This allowed regulations to come into effect immediately but raised concerns about a lack of meaningful parliamentary scrutiny.

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