Covid-19 and the criminal law Contents

1Introduction

1.In March 2020, the covid-19 pandemic caused an emergency that required the UK Government to act at pace to protect public health. As part of its response, the Government created new criminal offences via public health regulations.1 Restrictions or “lockdown laws”, such as prohibitions on social gatherings and leaving home without reasonable excuse became part of daily life.2 In March 2021 we decided to examine the Government’s use of the criminal law during the pandemic to help protect the public and to see what lessons could be learned from the way in which new offences were created and enforced. We thank all who provided evidence.

2.Other parliamentary committees have examined issues related to the creation and enforcement of covid-19 restrictions, notably the Public Administration and Constitutional Affairs Committee, the Joint Committee on Human Rights, the House of Lords Constitution Committee and the Joint Committee on Statutory Instruments.3 As the Justice Committee our focus has been to consider the creation and enforcement of covid-19 restrictions in the wider context of the criminal justice system and from a “rule of law” perspective—that is, to consider the offences and their application within the wider context of the widely accepted principles of the rule of law set out in 2010 by Lord Bingham.

Box 1: Lord Bingham’s eight principles of the Rule of Law

(1) The law must be accessible and so far as possible intelligible, clear and predictable.

(2) Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

(3) The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

(4) Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

(5) The law must afford adequate protection of fundamental human rights.

(6) Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

(7) The adjudicative procedures provided by the state should be fair.

(8) The rule of law requires compliance by the state with its obligations in international law as in national law.

Source: Bingham, T, The Rule of Law, 2010

3.The Government summarised its approach to the criminal law during the pandemic as follows:

In response to the extraordinary circumstances created by the pandemic, the Government has taken a range of measures to control the spread of the virus and to protect the most vulnerable, in order to protect lives and livelihoods. The vast majority of the public and businesses have followed these rules and made huge sacrifices. Unfortunately, small numbers of people and businesses have not followed the requirements and thereby put others at risk. As part of the Government response, therefore, it has been necessary to provide for new criminal offences and powers to allow the police to enforce the rules as part of the “4E’s” model of Engage, Explain, Encourage, with Enforcement as a last resort.4

4.On 27 April 2021, Lord Bethell, the then Parliamentary Under Secretary of State, Department of Health and Social Care, further explained the Government’s approach:

[S]ome countries in Europe have policemen standing on the corner, and in Europe policemen have guns. They will stop you and ask you for your certificate when you are walking along. We never had that in the UK, and that was the situation that of course we wanted to avoid. That is not how we roll in this country. We were exploring the very fine line between trying to communicate really clear signals and clamping down on excess behaviours, but not criminalising behaviour, at which point we feared that we might lose the sentiments of the public. That did not happen, I am pleased to say.5

Lord Wolfson, Parliamentary Under Secretary of State at the Ministry of Justice, said the offences were used to send a message to explain “the sorts of sensible behaviours which [people] should be undertaking”.6 Kit Malthouse, Minister for Crime and Policing, set out that the way that these offences were enforced through Fixed Penalty Notices “was designed to be relatively light touch”.7

5.In considering the Government’s approach to its use of the criminal law during the covid-19 pandemic we recognise that the Government was required to act in exceptional circumstances and to respond to a public health emergency of a scale not seen in recent times. We therefore give credit to the Government and all those involved in developing and enforcing covid-19 offences in such difficult and unpredictable circumstances. The creation and enforcement of these offences played an important part in protecting the public.

6.The Government’s first priority must be to protect public health and save lives. The Government should be commended for moving to strike a difficult balance between the need to provide police forces with tools to enforce the rules without criminalising behaviour in ways incompatible with the fundamental values of our society.

7.However, the creation and enforcement of any new criminal offence must be compatible with widely understood principles of the rule of law. Ensuring that those principles are upheld serves to enhance understanding of and compliance with the law, which is essential to achieving positive public health outcomes and to save lives.

8.At the time of publication of this report, we recognise that almost of all of the covid-19 restrictions we refer to are no longer in force. However, should the covid-19 situation worsen again, and restrictions need to be reintroduced, we would urge the Government to act in line with the principles embodied in the conclusions of this report and with the lessons learnt.

1 In this report we focus primarily on the public health regulations as they have been made in England. The devolved Parliaments have been responsible for passing public health regulations in each of the other three nations of the United Kingdom.

2 For an overview of the “lockdown laws” see House of Commons Library Briefing Paper, “Coronavirus: A history of English Lockdown laws”, Number 9068, 30 April 2021

3 Public Administration and Constitutional Affairs Committee, Parliamentary Scrutiny of the Government’s handling of Covid-19, Fourth Report of Session 2019–21, HC 377; Joint Committee on Human Rights, The Government response to covid-19: fixed penalty notices, Fourteenth Report of Session 2019–21, HC 1364, HL Paper 272; House of Lords, Select Committee on the Constitution, “Covid-19 and the use and scrutiny of emergency powers”, Third Report of Session 2021–22, HL Paper 15; House of Lords, Secondary Legislation Scrutiny Committee, Interim report on the Work of the Committee in Session 2019–21, 39th Report of Session 2019–21, HL Paper 200

4 Ministry of Justice (COV0012)




Published: 24 September 2021 Site information    Accessibility statement