Since March 2020, the Welsh Government has made emergency legislation to manage the impact of the pandemic, making important parts of our daily lives illegal in order to protect public health.
Now that Wales has entered alert level 0, the restrictions are being lifted – but there are still questions about how the law should be made, scrutinised and enforced in times of emergency.
Making the law
The Welsh Government has brought in the main health protection and international travel restrictions using powers in the Public Health (Control of Disease) Act 1984.The Coronavirus Act 2020 gives the Welsh Government and public authorities additional powers to deal with the pandemic and stops authorities from having to comply with certain duties. The Welsh Government has made emergency legislation under a wide range of other Acts too, from relaxing school reporting requirements to changing how local authorities can meet.
Emergency legislation is normally introduced on a temporary basis. The Welsh Government has set 21-day review periods and sunset clauses (expiry dates) for the health protection regulations. Most of the Coronavirus Act is set to expire in March 2022, although this can be extended.
The restrictions have constrained some fundamental rights, to liberty, private and family life, and freedom of assembly. Under the Human Rights Act 1998, the Welsh Government may only interfere with these rights if the restrictions are a proportionate means of achieving a legitimate aim. In this case, the legitimate aim is protecting public health.
The Fifth Senedd’s Legislation, Justice and Constitution (LJC) Committee raised concerns that the Welsh Government hasn’t always explained how COVID-19 regulations were proportionate to that legitimate aim. The Law Society Wales has also questioned the proportionality of some measures, giving the example of an ‘extraordinarily broad’ temporary power for enforcement officers to enter premises using reasonable force to find out if regulations were being contravened.
As restrictions ease, the House of Lords Constitution Committee and the last Scottish Parliament’s COVID-19 Committee have called for reviews of whether current legislation grants governments appropriate powers for managing emergencies. The Senedd hasn’t considered this issue in detail.
Approving the law
The Welsh Government has made health protection regulations using the urgent (or ‘made affirmative’) procedure in Section 45R of the Public Health Act.
This allows the Welsh Government to make regulations without going to the Senedd first, but the Senedd must approve them within 28 days. The Senedd’s LJC Committee considers and reports on the regulations, drawing attention to issues of legal, political or public policy significance. Members of the Senedd then vote on the regulations. If the regulations aren’t approved within 28 days, they cease to have effect.
Some Members have questioned the use of the ‘made affirmative’ procedure to impose lockdown restrictions. In June last year, Suzy Davies MS asked then Health Minister Vaughan Gething MS if ‘made affirmative’ regulations could be brought to the attention of the Senedd more quickly after they were made, or for Members to be able to vote on the regulations before they came into effect. The Minister said ‘the made affirmative process is there for […] where extraordinary steps need to be taken at a level and a speed that makes sense for the public that we serve’.
The Senedd uses a range of different procedures for scrutinising and approving other COVID-19 legislation. For the Coronavirus Act, the UK Government must seek parliamentary approval every six months for continuing to apply non-devolved temporary provisions . The Welsh Ministers don’t have to do this for devolved provisions. The last Welsh Government promised to report to the Senedd on the use of powers in the Act on a regular basis. The second report on the use of COVID-19 powers was laid before the Senedd in April.
Communicating the law
Communicating the law is crucial in enabling people to understand what is legal and what is not. At times, keeping on top of the changes to the health protection regulations has been difficult. This is partly because the regulations have changed frequently – more than 30 times between March 2020 and March 2021.
The Welsh Government issued public health guidance alongside the regulations. This guidance has sometimes been worded differently from the law. During alert level 4 lockdown, for example, the Welsh Government asked people to leave home for ‘essential travel’ only, while the law permitted people to leave home if they had a ‘reasonable excuse’.
In its legacy report, the Fifth Senedd’s LJC Committee warned that Welsh Government messaging wasn’t always clear and accurate, noting that if a Minister says that people in Wales ‘should’ do something, people are likely to understand them to be referring to the law, when it may not actually be law. The Committee said that this issue should be monitored in the Sixth Senedd.
Enforcing the law
Enforcement officers can issue fixed penalty notices (FPNs) to penalise criminal offences under the restrictions. FPNs allow people to pay a fine (of up to £10,000 for certain offences), rather than face prosecution. If a person contests or doesn’t pay an FPN, they can be prosecuted.
Between March 2020 and June 2021, the police issued 11,884 FPNs for breaches of COVID-19 regulations in Wales, or about one for every 250 people. Some groups of people have been disproportionately likely to be issued with FPNs. 66% of FPNs were issued to men, and 44% to 18-24 year olds. 10% were issued to people of Asian, Black or Mixed ethnicity (compared to about 4% of the population at the 2011 census). In Scotland, research found that people in the most deprived areas were more than ten times more likely to receive FPNs than those in the least deprived.
The Crown Prosecution Service (CPS) reviews all cases where a person is prosecuted under the COVID-19 regulations in open court. 1551 such prosecutions were brought under the health protection regulations between March 2020 and March 2021 in England and Wales. Of these, 279 (18%) were found to be incorrect. Of 270 charges brought under the Coronavirus Act 2020, every single one was incorrect. The UK Parliament’s Joint Committee on Human Rights has warned that FPNs tend to disadvantage people least able to pay, since the only way to challenge them is to face prosecution and risk getting a criminal record.
Despite the differences between the England and Wales regulations, the CPS doesn’t publish data on incorrect FPNs and prosecutions for Wales. The last Welsh Government told the Fifth Senedd’s LJC Committee that it didn’t know how many FPNs or prosecutions had been issued incorrectly. The Committee said that the Sixth Senedd should hear more from enforcement authorities to find out about the challenges they face.
Article by Lucy Valsamidis, Senedd Research, Welsh Parliament