Do the Government have the legal authority to enforce mask wearing?

Do the Government have the legal authority to enforce mask wearing?

From the 24th of July 2020, the UK Government announced that in certain public places, face coverings would be mandatory. This decision has generated considerable debate. Social media platforms have been instrumental in placing blame for the spread of the virus on those who choose not to, or those who cannot, comply with recent measures. However, it can be said that this blame is misplaced. Not only is there a lack of scientific evidence to suggest that masks are effective, the Government have also enforced these measures without the law to support them.

Unlawful Enforcement

Initially, the Government made attempts to enforce mask-wearing on public transport, despite the fact that there was no such law that required UK citizens to do so. Nothing in the Coronavirus Act 2020, nor the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 stated that the police had the capacity to compel travellers to wear a mask on public transport. Nonetheless, more than 3000 staff, including police officers, were deployed at stations across the UK in order to ensure that the public complied.[1] This means that the Government used enforcement methods, without any legal basis. As Jonathan Sumption QC stated “[t]he police have no power to enforce Minister’s preferences, but only legal regulations, which don’t go anything like as far as the Government’s guidance”. [2] Further to this, the British Transport Police admitted that they had no real power to compel travellers to wear a mask, but that they would still refuse people access if they did not wear a mask.[3] Therefore, at this point, the Government did not have any legal authority, contractual or otherwise, to enforce mask wearing.

More recently, Miri Anne Finch talks about how the Kirklees Council have purposely used ambiguous language in letters to the public as a scare-tactic to enforce them to conform to social distancing.[4] Language such as “needs” and “rules” would likely imply that unless these “rules” are followed, then that individual could be breaking the law. However, as Miri Anne suggests in her letter, these are only government guidelines and so are merely voluntary. Therefore, persons who choose not to follow these “rules” would not be breaking the law, which suggests that Kirklees Council are using this ‘half-truth’ to their advantage.[5]

A Change in the Law?

On the 12th of June, the Government enacted an emergency procedure under section 45R of the Public Health (Control of Diseases) Act 1984. More specifically, s.45R(2) states that the Government can create law without the need for it to be ‘laid and approved’ by Parliament by ‘reason of urgency’.[6] Therefore, under the Health Protection Regulations 2020, the wearing of face masks became mandatory in certain places.[7] Should people not comply, they could be refused entry by a ‘relevant person’ or a ‘constable’. At this point, a failure to cover your face was now an offence outlined within legislation, and punishable by a fine.[8] Due to the enactment of the emergency procedure, Parliament had only read over these regulations, without any opportunity to scrutinise them.

The Medical Consensus on Mask Wearing

Should the scientific evidence have suggested that face coverings were effective methods of protecting the public against the virus, perhaps the unlawful enforcement of mask wearing may have been slightly forgivable. However, the scientific and medical consensus suggests the opposite, there is little to no evidence that face coverings are effective. This evidence was acknowledged by the World Health Organisation in April, they stated that “[t]here is limited evidence that wearing a medical mask…may be beneficial as a preventive measure”.[9] This is presumably because numerous studies conclude that “the filter material of face masks does not retain or filter out viruses or other submicron particles”.[10] Instead, some studies suggest that wearing a face covering could endanger the wearer, as a result of ‘increased hand-to-face contact whilst adjusting and removing the covering’.[11] This is echoed by England’s Deputy Chief Medical Officer, who noted that the public on mass are not used to dealing with PPE equipment which could lead to accidental contamination.[12] Miri Anne Finch, in her letter to Kirklees Council, stated that wearing face masks restrict oxygen flow and have the potential to cause damaging effects on one’s health.[13] In addition, Miri uses some of the top scientists studies as authority, such as Dr Kevin P Corbett and his challenge to the government to provide evidence that the “novel coronavirus” actually exists.[14] This, along with the  medical consensus of anti-masking raises questions as to why the Government have implemented these measures at all, let alone implemented them with a disregard to ordinary legal and democratic processes.

The Rule of Law and the Separation of Powers

Ordinarily, Parliament would have had the time to properly scrutinise and assess the regulations. Instead, the Government chose to enact their emergency powers in order to push these measures through, meaning that this legislation was enforced without any input from Parliament. The Government claimed that they enacted their emergency procedure because the measures needed to be pushed through as a matter of urgency. Which, on the surface seems to be a satisfactory reason. However, the UK had already endured three months of social distancing and a lockdown period, without using masks. It is unclear why, only at this point, there became “sufficient urgency and insufficient time to justify circumventing scrutiny and approval by our elected representatives in Parliament of Regulations on a policy that…will now be imposed by UK police forces on tens of millions of British citizens”.[15] Even if the scientific evidence had progressed, and it had now been found that masks were effective, then it does not explain why the Government allowed people 10 days to comply. Surely if new developments had changed so drastically in favour of mask wearing, the public would have benefitted from immediate implementation. Therefore, it can be said that this is unlikely to have been a matter of real urgency. As a result of this, it seems clear that the Government should not have enacted their emergency procedures and should have waited until these measures could be properly scrutinised by Parliament.

Infringement of Civil Liberties

Due to the enactment of the emergency procedures, the Government have been free to create legislation without the scrutiny of Parliament. This includes regulations that require UK citizens to wear face masks, despite the fact that there is a possibility that they could pose a risk to the health of certain wearers. This could amount to a contravention of Article 1 of the Human Rights Act 1998, that is that everyone’s right to life shall be protected by law. The risk of this, is as a result of the fact that the UK are not well versed in the use of PPE, but nonetheless were expected to become “competent makers, wearers, and maintainers of PPE” overnight.[16] This has no doubt resulted in further contamination as wearers touch their faces to adjust masks, put their masks down on contaminated surfaces and abandon social distancing efforts because masks give them a false sense of security. There will undoubtably be cases where a citizen has contracted the virus through lack of education as to proper PPE practice. Whilst this link would be extremely hard to establish in practice, a risk exists, nonetheless. This risk also exists directly as a result of unscrutinised Government measures. In this instance, it can be argued that the law fails to protect the lives of certain wearers, and therefore that the Government does not have the legal authority to enforce these measures.

Social and Political Ramifications

One response to the above point would no doubt be that if you have a medical reason not to wear a mask, then you do not have to comply with the measures, thus minimising the risk. However, there will be a proportion of the public that will not realise that they are exempt from wearing a mask for medical reasons, or that are coerced into wearing a mask when they do not need to, in fear of falling victim to public shaming for not complying. The Commissioner of the Metropolitan Police, Cressida Dick, has encouraged public shaming for not wearing masks, stating that she hoped that British citizens would ‘shame each other into wearing masks’.[17] Masking has become an arguably political badge enforced despite a lack of legal authority or scientific evidence. This is somewhat suggested by the World Health Organisation, who state that wearing masks serves the purpose of allowing the public to feel as though they are contributing to the effort and that the wearing of masks encourages compliance with other measures, rather than offering any preventative benefits.[18] Therefore, the Government have put those who are exempt from wearing masks in a difficult situation, without any real need due to the fact that evidence suggests masks are ineffective. Choosing not to comply with these measures, is not necessarily easily done.

Court of Appeal Judgment

The UK government restrictions will culminate to catastrophic effects on the UK economy and the health and welfare of its citizens. There has already been devasting effects in certain business industries, on the nations employment rates and a sharp deterioration in the mental health of almost fifty percent of the UK population.[19] As a result of these detrimental effects, groups of individuals have come together to question the validity of the governments decisions over the coronavirus lockdown.  In particular, Simon Dolan has formed a group of “like-minded souls” [20] to legally challenge and call for a Judicial Review of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 that enabled the closure of businesses, schools and the excessive restriction on the publics life. [21] At first instance the case was denied, nevertheless, after a considerable amount of reflection in the Court of Appeal, the case was successfully granted to the next stage. The grounds of succession were due to the ‘regulations imposing possibly the most restrictive regime on the public life of persons and businesses ever’, as well as raising ‘fundamental concerns over the accountability of democratic ministers’.[22] Following this, the Judicial Review application will proceed to a full-submission hearing considered by the full open-court and this will take place during the week beginning 28th of September. The Court of Appeal will decide whether the case will go to a full appeal and the applicants will get the opportunity to fully argue their side of the case in person. This seems to be somewhat of a major break-through for Simon Dolan and his group and if they are able to make a claim for Judicial Review, the government could find themselves legally accountable in the way they made their decisions during the pandemic.

In essence, it can be argued that the Government have taken advantage of the pandemic in order to pursue a certain level of legal and, in some instances, social control. This is evidenced by the fact that they have enforced unlawful regulations, infringed upon key constitutional foundations and neglected the human rights of UK citizens without any real legal basis. Mask wearing in the UK is neither supported by medical and scientific evidence, nor is it supported by legal authority. In addition, recent developments such as ‘the Legal Challenge to the UK Govt Lockdown’, have the potential to account the government of acting illegally, irrationally or disproportionately. Simon Dolan and the other applicants in the case have successfully argued the first-stage of the appeal, which could potentially lead to a successful Judicial Review claim after the hearing at the end of September. This raises questions regarding the procedures the government used to make their decisions during this pandemic and might provide a very interesting outcome in regard to lifting of the current restrictions.

 

[1] https://www.bbc.co.uk/news/uk-53045386 Accessed 28th July 2020.
[2] Jonathan Sumption, The World at One on BBC Radio 4 (Monday 30th March).
[3]https://media.btp.police.uk/r/17238/face_coverings_to_become_mandatory_on_public_tran?fbclid=IwAR17Yz2Irrtvv8H6uE9geC5AQXcJhqDWNh-4yBmanlikAaRt4l3emhsaqy4 Accessed 28th July 2020.
[4] Miri Anne Finch, ‘ Letter to Local Council Regarding a “COVID-19 Update” They Sent Me’ https://miriaf.webs.com/kirkleescouncilcovid19 Accessed 7th August 2020.
[5] ibid.
[6] Public Health (Control of Diseases) Act 1984, s.45R (2).
[7] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
[8] Ibid.

[9] https://www.who.int/publications/i/item/advice-on-the-use-of-masks-in-the-community-during-home-care-and-in-healthcare-settings-in-the-context-of-the-novel-coronavirus-(2019-ncov)-outbreak Accessed 28th July 2020.
[10] John Hardie, ‘Why Facemasks Don’t Work’, (18th October 2016) https://architectsforsocialhousing.co.uk/2020/06/11/the-science-and-law-of-refusing-to-wear-masks-texts-and-arguments-in-support-of-civil-disobedience/ Accessed 29th July 2020 .
[11] https://architectsforsocialhousing.co.uk/2020/06/11/the-science-and-law-of-refusing-to-wear-masks-texts-and-arguments-in-support-of-civil-disobedience/ Accessed 28th of July 2020.
[12]  BBC Interview with Dr. Jenny Harries, Deputy Chief Medical Officer for England (12 May 2020).
[13] Miri Anne Finch, ‘ Letter to Local Council Regarding a “COVID-19 Update” They Sent Me’ https://miriaf.webs.com/kirkleescouncilcovid19 Accessed 7th August 2020.
[14] Dr Kevin P. Corbett, ‘Where is the evidence for the existence of the ‘Novel Coronavirus’, ‘SARS-CoV-2’? https://evidencenotfear.com/where-is-the-evidence-for-the-existence-of-the-novel-coronavirus-sars-cov-2-dr-kevin-p-corbett/ Accessed 7th August 2020.
[15] https://architectsforsocialhousing.co.uk/2020/06/11/the-science-and-law-of-refusing-to-wear-masks-texts-and-arguments-in-support-of-civil-disobedience/ Accessed 28th of July 2020.

[16] Dr Simon Clarke, ‘Face Masks on Trains and Buses Policy Ignores Previous Advice – Expert Comment’, 4th June 2020, https://www.reading.ac.uk/news-and-events/releases/PR842073.aspx Accessed 29th July 2020.
[17] Cressida Dick, Call the Commissioner LBC Radio (21st July 2020).
[18] https://www.who.int/publications/i/item/advice-on-the-use-of-masks-in-the-community-during-home-care-and-in-healthcare-settings-in-the-context-of-the-novel-coronavirus-(2019-ncov)-outbreak   Accessed 28th July 2020.
[19] Laura Hampson, ‘How lockdown is exacerbating existing mental health issues’, 15th May 2020 https://www.standard.co.uk/lifestyle/healthy-at-home/mental-health/lockdown-affecting-mental-health-issues-a4441626.html Accessed 6th August 2020.

[20] Simon Dolan, ‘Join the Legal Challenge to the UK Govt Lockdown’ 5th August 2020 https://www.crowdjustice.com/case/lockdownlegalchallenge/ Accessed 6th August 2020
[21] See Simon Dolan, Lauren Monks and AB v Secretary of State of Health and Social Care and Secretary State for Education 2020 CA https://static.crowdjustice.com/group_claim_document/Court_of_Appeals_Order_-_4_August_2020.pdf Accessed 6th August 2020
[22] ibid.