Shorter
ARticle
Legislating for a pandemic in
Guernsey
Jon McLellan
At the time of
writing, the number of active cases of COVID-19 in Guernsey has dropped to
zero, and it has been well over a hundred days since a new active case. That
may well have changed by the time this is published; nevertheless, it seems an
apposite time to take a look back at the Bailiwick’s experience of the
pandemic from the point of view of a legislative drafter, and to make a few
general observations.
An emergency
under the 2012 Law
1 The legislative response to the pandemic
was and remains predicated on it being an emergency within the meaning of the
Civil Contingencies (Bailiwick of Guernsey) Law 2012 (“the 2012 Law”),
thereby permitting the making of emergency regulations to prevent, control or
mitigate the emergency.
2 The parts of the 2012 Law concerned with
the making of emergency regulations are couched in similar terms to equivalent
provisions of the United Kingdom’s Civil Contingencies Act 2004 (“the
2004 Act”). In particular, in both enactments a power is conferred to
make emergency regulations if criteria relating to the occurrence of an
emergency, viz. urgency and necessity, are satisfied. However, the 2012
Law contains an additional condition: that Her Majesty’s Procureur must
have advised the Civil Contingencies Authority (“the CCA”—a
committee of the States established by Part 1 of the Law) about the
proportionality of making the proposed regulations. In the 2004 Act, the
equivalent condition requires the person making the regulations
to be satisfied that the effect of the provision is in due proportion to that
aspect or effect of the emergency, but it makes no reference to a requirement for
advice from any person in relation to proportionality.
3 Under provisions in both the Law and the
Act, regulations can make (subject to certain restrictions, especially in
respect of the power to create criminal offences)
any provision that can be made by an Act of Parliament or the Royal
Prerogative, or Projet de Loi (as the case may be); and under
both, regulations need to be laid before Parliament or the States “as
soon as reasonably practicable” after being made, and have a maximum
duration of 30 days.
4 A noteworthy and politically pertinent
difference between the two enactments is the identity of the person who may
make emergency regulations. Under the 2012 Law it is the CCA; under the 2004
Act it is Her Majesty by Order in Council, or if an Order in Council cannot be
made without “serious delay”, a senior minister of the Crown (a
defined term that includes any of Her Majesty’s Principal Secretaries of
State). The CCA comprises the Presidents of four Committees of the States and
where (as is the case with the pandemic) Alderney and Sark are affected,
representatives from those Islands in the capacity of temporary members.
5 Anyone who has been following the
responses of government to the pandemic will know that the Bailiwick’s
approach differs from that of the United Kingdom, where, instead of regulations
being made under the 2004 Act, the Coronavirus Act 2020 was enacted on 25 March
2020 and several sets of regulations have also been made under the Public
Health (Control of Disease) Act 1984. It is not for the author to speculate why
HM Government acted as it did in this regard, though several commentators have
drawn attention to the requirements in the 2004 Act to make new regulations
every 30 days and to lay them before Parliament as soon as possible, and compared
with the less exacting scrutiny requirements in the Coronavirus Act.
6 In Jersey, where there is no directly
equivalent to the 2004 Act in place, the Covid-19 (Enabling Provisions)
(Jersey) Law 2020
created a regulation-making power that appears broadly similar in scope to that
under the 2012 Law, though limited to provision that appears to the States “necessary
or expedient as a direct or indirect result (a) of the outbreak of Covid-19 in
Jersey or (b) the aftermath of that outbreak”. No regulations may be made
under the Law on or after 1 January 2021.
How the regulations have developed
7 The pandemic is the first event or
situation
that has caused the powers to make emergency regulations under the 2012 Law to
be used. The first set of regulations, dealing with powers of the Medical
Officer of Health (“the MOH”) to impose
restrictions, including requirements to self-isolate and be detained, and
associated police powers and criminal offences, were made on 18 March 2020.
After those regulations, another 11 sets of regulations were made within the
30-day duration period of the initial set, dealing with issues ranging from
driving licences to the closure of schools and the holding of remote meetings
of the Islands’ legislatures, as well as conferring wide-ranging powers
for the Committee for Health & Social Care to issue directions controlling
gatherings. On the expiry of the first set, the decision was taken to revoke
all the regulations and to re-enact them in one composite set (the Emergency
Powers (Coronavirus) (General Provision) (Bailiwick of Guernsey) Regulations,
2020, made on 16 April). The reason for this was to increase public
accessibility, and to increase coherence and consistency between the different
sets of regulations. That set was subsequently made subject to minor
amendments, and then re-enacted (with further tweaks) on expiry as the (No 2)
Regulations. This process has been repeated since, with further provision being
made by amendment to the composite regulations and not by a free-standing set
of regulations. At the time of writing (mid-August) the (No 5) Regulations are
in force.
8 The first set of regulations made on 18
March comprised 14 regulations. The first composite set of regulations made on
16 April was made up of 46 regulations in 11 Parts, and 5 Schedules, and ran to
some 123 pages with the Explanatory Note—a hefty piece of legislation by Guernsey
standards. Since that first composite set, the process of legislating in the
emergency has, in part, been one of keeping the regulations in force under
regular review and revoking in a timely manner provisions that no longer
satisfy the statutory criteria. The (No 5) Regulations comprise 22 regulations
and 2 Schedules, and are primarily concerned with a key aspect of the very
first set of regulations—powers at the border. In a way, the regulations
in force over time, from March to August, describe a bell-curve in terms of
length and subjects covered; and, as noted above, Guernsey has now, to a
significant degree, reverted back to the substance of the very first set of
regulations.
An ongoing emergency
9 The 2012 Law defines an emergency in terms
of its being “an event or situation” which threatens serious damage
to human welfare or the environment in the Bailiwick or any part thereof (or
war, or terrorism, which threatens serious damage to the security of the
Bailiwick, or any part thereof). Interestingly, in the context of the Bailiwick’s
ongoing COVID-free status (at the time of writing), s 2(4) provides that
such an event or situation may occur or be within or outside the Islands.
10 Most might instinctively think of an
emergency, in the context of emergency powers legislation, as an event, such as
a plane crash. The pandemic has been a reminder that an emergency can also be,
as expressly provided for in the legislation, an (ongoing) situation—indeed,
a pandemic has for some time been high on many jurisdictions’ risk
registers, and it will be clear that if a pandemic is serious enough, not only
will it be an emergency within the terms of the 2012 Law, but it will also
likely persist for a long period. There is, it is submitted, clearly nothing
wrong in legislative terms in repeatedly re-enacting regulations
for the purpose of addressing an ongoing emergency, if the statutory conditions
for making such regulations continue to be met, given that those regulations
will in any event be of short duration (as provided for under the 2012 Law). In
terms of democratic scrutiny, the requirement that the regulations must be laid
before the States “as soon as practicable” also ensures that there
is an opportunity for debate, notwithstanding that they will already have come
into force.
“When was the emergency declared?”
11 A minor ongoing confusion has been in
relation to the idea that an emergency needs to be declared under the 2012 Law
for the power to make emergency regulations to be lawfully exercised by the
Authority. Under the predecessor to the 2012 Law, the Emergency Powers
(Bailiwick of Guernsey) Law 1965, the Emergency Powers Authority had power by
order to “declare that a state of emergency exists”, and such a
declaration was a necessary pre-condition of the making of emergency
regulations. There is no such equivalent public trigger in the 2012 Law; the
CCA is empowered to make emergency regulations once the statutory conditions
for doing so have been satisfied. Nevertheless, it remains a stubborn
misconception that a declaration of some sort is necessary; it is as though
such a public step meets a psychological need.
Directions, variations, and the need for
flexibility
12 The circumstances relating to the
pandemic are, by their very nature, subject to constant change, and government’s
response needs to be equally adaptable. It also became clear early on that the
detailed public health requirements to control the spread of infection in the
first stages of lockdown were not easily susceptible to being set out in
regulations, and that consequently some form of enforceable instrument to be
made under the regulations would be needed.
13 As early as 20 March, in the Control of
Premises regulations, the CCA created a power exercisable by the Committee for
Home Affairs, after consultation with the MOH, to
issue a direction imposing prohibitions, requirements or restrictions in
relation to premises (excluding solely residential premises); and it was this
power that was used to make a direction that had the effect of closing pubs and
nightclubs that same Friday night. A few days later, the Control of Events,
Gatherings and Meetings regulations were made, which conferred a
direction-making power on the Committee for
Health & Social Care. The power was to “issue a direction
imposing conditions, prohibitions, requirements or restrictions in relation to
the holding of an event, gathering or meeting (whether planned or unplanned and
of whatever duration) between or attended by persons from different households”;
and the regulations provided that a direction could “amongst other
things, specify a minimum distance that must be maintained between persons of
different households”. Both sets of regulations provided that directions
made under them could only be in force for a maximum of 14 days, and could only
be made after consultation with the MOH. Importantly,
the regulations also provided that a failure without a reasonable excuse to
comply with a direction would be an offence: a failure to maintain social
distancing was made subject to the sanction of the criminal law.
14 Several complex and detailed directions
were issued under these regulations before the direction-making powers were
combined in the first composite set of regulations. This composite set
conferred on the Committee for Health & Social Care the power to issue a
direction imposing conditions, prohibitions, requirements or restrictions in
relation to “the movement of people outside the place where they are
living as well as premises, and gatherings etc.” The power was only
exercisable after consultation with Her Majesty’s Procureur as well as
the MOH; nevertheless, the provision must surely
constitute one of the most, if not the most, wide-ranging set of powers to
restrict freedom of movement ever conferred on a Committee of the States in
peace-time.
15 As conditions changed, different
directions (and “general authorisations”
issued thereunder by the Committee for Health & Social Care, dealing with
such matters as “bubble arrangements” and the use of outdoor
leisure facilities) were made; the last direction was Direction No 10, made
under the (No 2) Regulations with effect from 5 June until 13 June.
16 A similar requirement for flexibility has
been required as the Bailiwick starts the difficult process of opening its
borders. As that process began, it became apparent that the requirement to
self-isolate for 14 days would need to be capable of modification. Accordingly,
a power to vary the application of the requirement—by the MOH in relation to particular cases (to meet individual
medical and compassionate needs) and by the CCA itself in relation to all cases
or specified categories of cases (to meet broader policy purposes)—was
introduced; and variations have followed directions as a species of
quasi-legislation made under the emergency regulations.
Alderney and Sark
17 There have, at the time of writing, been
no cases of Covid-19 in Alderney or Sark. Nevertheless, as the pandemic is “an
event or situation which threatens serious damage to human welfare” as
much to the sister Islands of the Bailiwick as to Guernsey, there is
consequently, in the terms of the Law, an emergency throughout the Bailiwick.
The 2012 Law is a Bailiwick-wide Law and the CCA is an authority for the whole
Bailiwick. Schedule 1 to the Law provides that where a majority of the
permanent members of the Authority are of the view that an emergency has
occurred, is occurring or is about to occur, and Alderney and/or Sark are affected, the Authority shall invite the relevant
Committees in those Islands “to nominate a representative to be a
temporary member of the Authority; and on that nomination being accepted by the
representative, he shall be a temporary member of the Authority”.
18 Such temporary members have the same
rights and responsibilities in relation to the Authority as permanent members,
and representatives from Alderney and Sark have sat on the Authority in the
capacity of temporary members and contributed to its deliberations from its
first meetings in respect of the pandemic. Separate provision has on occasion
been made for one or both Islands at their request; most recently, the
seven-day self-isolation option variation from the requirement to self-isolate
for 14 days on arrival in the Bailiwick from a “Category B country”
did not extend there on introduction.
Remote meetings—of the CCA (and other
committees), and the Island legislatures
19 The participation of the temporary
members of the CCA from Alderney and Sark has been made much easier by the
express provision in the 2012 Law for the CCA to meet remotely.
Remote meetings of other States committees have been facilitated by a change to
the Rules of Procedure,
and remote meetings of the States of Deliberation were enabled by the Emergency
Powers (Coronavirus) (States Procedures) (Guernsey) Regulations 2020, made on 9
April, which temporarily modified the Reform (Guernsey) Law 1948—inserted
art 3A(1) and provided that “The States of Deliberation may meet remotely”.
Consequently, Rules of Procedure were made under art 3A governing such remote
meetings, and of course the States did of course go on to meet remotely,
in another first arising from the pandemic. Provision in respect of remote
meetings of committees in Alderney and Sark, and of the States of Alderney and
the Chief Pleas, was made by separate sets of regulations.
An immense effort
20 At the time of writing, 22 sets of
emergency regulations have been made—just under 30% of the total number
of statutory instruments made at the time of writing this year. In addition, as
noted, significant numbers of instruments made under the regulations—many
of them as lengthy and complex as any other piece of legislation—have
been prepared. This has all been done at great pace: in the period between 18
March and 16 April, 13 sets of regulations as well as multiple directions, and
general authorisations thereunder, were drafted and made. This legislative
effort is of course just one part of a huge effort by the governments of the
Bailiwick to manage and mitigate the effects of this extraordinary public
health emergency.
Jon McLellan is
a Crown Advocate of the Royal Court of Guernsey and Director of Legislative
Drafting and Advisory, Law Officers of the Crown