Written evidence from Professor Fiona de Londras, Dr Pablo Grez Hidalgo and Daniella Lock, COVID-19 Review Observatory, Birmingham Law School, University of Birmingham
Focus of our submission
This submission is focused on two sets of issues referred to in the Committee’s call for evidence:
1. Human rights and the Justice Committee’s remit
1.1 We note that the remit of the Justice Committee is to examine the ‘expenditure, administration and policy of the Ministry of Justice and associated public bodies’. We submit that integrating human rights considerations into the Committee’s work is within its remit.
1.2 International human rights obligations and obligations under the Human Rights Act 1998 apply to all government activity, including that which is carried out by the Ministry of Justice. As the key Government department in respect of the coercive power of the state, the policy of the Ministry of Justice implicates all human rights in a number of different ways. Key human rights standards implicated include:
1.3 Human rights obligations also apply to the administration and the arrangement of public expenditure within the Ministry of Justice. In practice, this means that in making resource-allocation decisions, including decisions about the funding of local authorities which have rights-fulling roles including in the provision of legal aid and access legal representation, the Government is expected to take into account its human rights obligation.
1.4 The Justice Committee has a legitimate role in assessing the extent to which the Government is fulfilling its human rights obligations in the expenditure and arrangement of public funding. Indeed, doing so is integral to assessing the manner in which the Ministry of Justice discharges its functions. As courts generally exercise deference in respect of policy and government expenditure, Parliament and its committees play a critical role in ensuring accountability for the Ministry of Justice for the human rights implications of its work. The Justice Committee is critical to that accountability and scrutiny work. Our submission surfaces a number of human rights considerations relevant to the Committee’s inquiry on ‘COVID-19 and the Criminal Law’ in order to assist the Committee in integrating human rights analysis in its inquiry.
2. The process by which COVID-19 criminal offences have been created, including the role of the made affirmative procedure and the consultation process inside and outside Government
2.1 The creation of COVID-19 criminal offences has been on the basis of delegated legislation passed under two parent acts - the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984. As shown below, both the possibility that criminal offences would be created and the criminal offences themselves did not receive adequate levels of Parliamentary scrutiny or involve appropriate consultation outside of Government. It is not clear what consultation related to these offences has taken place inside of Government so we have not made a judgment on this issue.
2.2 That the Coronavirus Act 2020 gave the Government the power to create criminal offences via delegated legislation was subject to no Parliamentary scrutiny, and there is no evidence of consultation having taken place on the offences within or outside of Government. The Coronavirus Act 2020 was passed by Parliament in just under two days. The Act was considered by MPs between 4.01pm and 10.44pm on 24 March 2020. No explicit discussion can be found in the Commons Hansard of the powers to create criminal offences in the Act. There is no explicit reference to criminal offences in the Lords’ debate on the Act that took place on 25 March either. On this basis it is clear that such offences were passed by Parliament with no consideration as to the societal implications of such powers.
2.3 Criminal offences created by means of regulations passed under the Public Health (Control of Disease) Act 1984 have also received a notable lack of scrutiny from Parliament. As the Committee will know, the regulations have been made under section 45R of the Public Health (Control of Disease) Act 1984. As a result, it has been possible for them to come into force for 30 days without any form of approval by Parliament. We note that when debates for approval have been had by Parliament, they have ‘mainly acted as a platform for MPs to raise general issues’, rather than examined specifics of the regulations being voted on. Indeed in some cases the relevant restrictions have not been made available to Parliament in time for them to be properly scrutinised. Crucially the scheduling of Parliamentary debates around regulations by the Government has meant that Parliamentary scrutiny of these regulations has been ‘stale and largely academic’.
2.4 A good example of this is the recent Parliamentary debate on the renewal of the Coronavirus Act 2020 that took place on the 25 March 2021, the last day before Parliamentary recess for Easter. The debate had to cover the first annual report on the operation of the Coronavirus Act 2020, procedural matters for the hybrid Parliament as well as extensive regulations passed under the authority of the Public Health Act 1984 that created new and controversial criminal offences. However, the debate was carried out within three hours. Given that these regulations contained a raft of new criminal offences and restrictions on liberty, such a lack of meaningful scrutiny is constitutionally inappropriate and affords no protections to human rights. There is also no evidence that any consultation has taken place between the Government and outside groups as to the nature, and human rights impact, of the criminal offences contained in the regulations.
3. The checks and balances in place to review the way that these offences are being policed and prosecuted, including the role of the Crown Prosecution Service in reviewing cases
3.1 Two features of the policing of COVID-19 criminal offences indicate that there are not currently in place proper checks and balances to protect human rights. The first factor is that the latest review of the Crown Prosecution Service shows that that 359 of 1,252 charges last year under laws brought in to aid public health measures were later withdrawn or quashed in court. Moreover, every one of the 232 prosecutions brought under the Coronavirus Act 2020 were found to be brought on wrongful charges. This suggests that these offences are not subject to safeguards sufficient to ensure they are being used in a necessary and proportionate manner, and to protect against their arbitrary use.
3.2 Secondly, a disproportionate number of Black People and People of Colour (or ‘BAME’) people have been fined under COVID-19 related offences. For example, out of all the fixed penalty notice fines processed last year between 27 March and 14 March , 46% (444) were imposed on white people who make up 59% of Londoners, while 26% (253) of fixed penalty notices were issued to Black people, who make up 12% of the capital's population. This also indicates a lack necessary safeguards attached to these powers, in particular to protect the right to non-discrimination.
Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School, University of Birmingham.
Dr Pablo Grez Hidalgo is a Research Fellow at the COVID-19 Review Observatory, Birmingham Law School, University of Birmingham.
Daniella Lock is a Research Fellow at the COVID-19 Review Observatory, Birmingham Law School, University of Birmingham.
The COVID-19 Review Observatory is a UKRI-funded (AHRC) research initiative located at Birmingham Law School, University of Birmingham. It tracks, assesses, and engages with parliamentary reviews of responses to the COVID-19 pandemic.
 Description of the Justice Committee provided on the Committee webpage: https://committees.parliament.uk/committee/102/justice-committee/role/
 Description of the Public Accounts Committee provided on the Committee webpage: https://committees.parliament.uk/committee/127/public-accounts-committee/.
 For example, see Coronavirus Act 2020, Schedule 55, s44 (1).
 Public Health (Control of Disease) Act 1984, section 45R.
 See from HC Deb (24 March 2020) Column 35.
 See from HL Deb (25 March 2020) Column 1649.
 See Tom Hickman QC, ‘Abracadabra law-making and accountability to Parliament for the coronavirus regulation’ in Study of Parliament Group, Parliaments and the Pandemic (January 2021), p45.
 See from HC Deb (25 March 2021) Column 1109.
 Such as for example, an offence related to going to the airport. Ibid.
 For more discussion on this debate see Fiona de Londras, ‘Six-Monthly Votes on the Coronavirus Act 2020: A Meaningful Mode of Review?’, U.K. Const. L. Blog (25th March 2021) (available at https://ukconstitutionallaw.org/))
 See Lizzie Dearden, ‘Almost a third of prosecutions under coronavirus dropped, review show’, The Independent, 6 February 2021 (available at: https://www.independent.co.uk/news/uk/home-news/coronavirus-laws-prosecutions-wrongful-court-review-b1798423.html).
 See ‘Coronavirus: Disproportionate number of BAME people fined’, BBC News, 3 June 2020 (available at: https://www.bbc.co.uk/news/uk-england-london-52905787).