The Law of Pandemics

Infectious and communicable diseases have been affecting humans for many thousands of years and ancient populations suffered many of the diseases our modern society is inflicted with, for example a 2008 study recently concluded that Tuberculosis is at least 9,000 years old from an analysis of ancient skeletons. However, it is only since the rise of agriculture and cultivation 11,000 years ago, and the associated wider mixing of communities and establishment of trade routes, that infectious diseases have had the channels available to more readily spread across populations as a whole.

Hippocrates (credit: Wikipedia)

The word epidemic originates around 2,500 years ago and the ancient Greek physician Hippocrates prominently used it in his set of books ‘Epidemics’ as an adjective to mean a disease “which circulates or propagates in a country” and its exact meaning and usage has evolved over time. The first recorded usage of the word pandemic is much later in Harvey’s ‘Anatomy of Consumptions’ (1666), its origin taken from the ancient Greek ‘pan’ to mean ‘all’ and ‘demos’ meaning ‘people/country’ and its definition as a noun is now commonly accepted to be “an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population” (Meriam-Webster). Incidentally, Harvey suggested preventative measures for pandemic diseases, two of which were for an individual to “walk daily in a pleasant, airy and umbragious [shady] garden, park or field” and eat less “flesh-meat”, meaning animals.

The first detailed account of a pandemic in global history is the disease that reached and spread through Athens (believed to have originated near Ethiopia) in 430 BC, the symptoms and effect of which were recorded by the Greek historian Thucydides. It is believed to have killed one third of the population of ancient Athens. The symptoms comprised fever, inflammation of the eyes and throat and difficulty breathing, amongst other things. Whilst there has been much debate amongst historians about what disease this pandemic involved, two prominent suggestions are Typhoid and Measles.

The Plague of Justinian (credit: Devastating Disasters)

Another significant early pandemic was the emergence of the Plague of Justinian in 541 AD in the Byzantine Empire and named after then emperor Justinian I. During the following two centuries, it spread throughout the world across a number of outbreaks, likely first hitting Britain in the year 597 AD, at that time attributed to travellers from abroad and their attempts to convert pagan Britain to Christianity. A further outbreak occurred in 664 (later known as ‘The Yellow Plague’) which may have killed one third of the population. Anglo-Saxon monk-historian Bede in his ‘Ecclesiastical History’ states that this plague began on 1 May 664 and coincided with a total solar eclipse. The Yellow Plague may have been viewed at the time as an omen of dire times to come and in the following centuries may have been re-framed by religious authority figures as a communal punishment for transgression against God’s laws and due to the paganism of the British people at that time. Scientists have recently concluded that it is likely that the disease of Justinian’s Plague was caused by the same bacteria that caused the very well-known pandemic Black Death in Europe in the 14^th Century.

A Black Death plague doctor (credit: Wikipedia).

The European outbreak of the Black Death began in Sicily in October 1347 and, prior to the start of the Black Death in England in 1348, the vast majority of English epidemics since 664 (in the wider sense) were famine-sickness related and were a relatively common but less impactful occurrence. The Black Death’s impact was like nothing the world had seen and is believed to have entered Britain in August 1348 and quickly spread to London by the end of the year, leading Parliament to be prorogued on 1 January 1349. The disease ravaged the country and drastically thinned the population by an estimated 30-40% over the course of 1349. In response to a sudden loss of workers, King Edward III issued the Ordinance of Labourers on 18 June 1349 which stated that all those under the age of 60 must work and employers could not pay, nor employees demand, wages that exceeded pre-Black Death (1346) amounts. Generally seen as ineffective in a practical sense, Parliament tried to reinforce the Ordinance by passing the Statute of Labourers in 1351 which is widely considered the origin of English labour law. Again, practically this did not work because workers were now at a premium. Farm wages in 1351 were two or three times the amount of pre-Black Death wages and generally farming wages on the whole doubled between 1350 and 1450. These restrictive labour laws were also a significant factor in the cause of the Peasants’ Revolt of 1381 which had a number of wide-ranging impacts on Britain’s societal and class structure. Instances of the bubonic plague occurred in England (on lesser scales) throughout the next two centuries and lastly affected England in 1666. Whilst quarantining in the time of the Black Death had been followed informally at a personal level, it was not until the Quarantine Act of 1710 where the quarantining of incoming ships and crews to prevent the plague travelling from country to country was formally introduced. A number of further Quarantine Acts followed introducing various procedures and quarantine mechanisms, eventually being repealed by the Public Health Act of 1896.

A number of global pandemics have affected the UK, ranging from Smallpox across the 16^th and 17^th centuries, various outbreaks of the bubonic plague, cholera and influenza and more recently the Spanish Flu of 1918-19 and Swine Flu of 2009-10, amongst others. Responses to some of which have been direct and indirect catalysts for changes in English law. The response to the current global pandemic (Novel Coronavirus (COVID-19)) is a prime example of such legal changes.

Global Pandemic (credit: Axios)

Particularly severe cholera outbreaks in 1831-32 brought to the forefront of people’s minds the poor conditions of sanitation in the cities of the UK. Eventually, following consultation and papers for reform, this led to the introduction of the Public Health Act 1848 which introduced a Central Board of Health whose remit was improving supplies of water, drainage and sewerage, as well as regulating the country’s environmental health with local authorities being responsible for practical implementation. Whilst this initial Act was limited in its scope, a more comprehensive Public Health Act 1875 was later passed which also required each local authority to have a medical and sanitary officer whose powers extended to isolating patients in hospital, requiring the disinfection of property and belongings, suspension of schools and temporary closure of businesses. The key principles of the late 19^th Century for improving public health were adequate sewers, removal of rubbish and clean drinking water.

A particularly bad pandemic of Smallpox in 1870-1875 led to the introduction of other relevant pandemic laws of note, being the Vaccination Acts 1885, 1898 and 1907 which required compulsory vaccination. These Acts were met with much opposition as there was fiery debate at the time about the causes of infectious diseases and the effectiveness of vaccines.

Supplementing these Acts were the Infectious Disease (Notification) Acts of 1889 and 1899 which required General Practitioners and people generally to report cases of infectious diseases to the local authority; failure to do so would incur a fine of up to 40 shillings. Over the following decades, various specific health Acts were introduced, prominently among them being the 1936 and 1961 Acts which built on and reiterate the provisions of the older Public Health Acts.

The bedrock of English law relating to infectious diseases specifically is the Public Health (Control of Diseases) Act 1984 which modernises and extends many of the general powers described above that appeared in the Public Health Act 1875. This Act, together with a large number of supplementary Acts and regulations, is what gives the Government the authority to take the recent actions they have in response to Covid-19 (e.g. closing of non-essential businesses). With the reorganisation of the National Health Sefvice in 1974 and 1990, the responsibility for relevant community healthcare moved from local authorities to the National Health Service although legal responsibility for infectious diseases still remained with the local authorities which made the performance of certain duties in this respect more difficult, and by whom, ambiguous.

Covid-19 (credit: New Scientist)

The most recent pandemic which is rapidly spreading across the world is Covid-19 (originating in Wuhan, China in late 2019) which as at 26 March 2020, has infected 491,180 people across the world and caused 22,165 deaths. In response to the pandemic Parliament has passed, in force as of 25 March 2020, the Coronavirus Act 2020. This Act defines coronavirus to be severe acute respiratory syndrome coronavirus 2 (SARS-Cov-2) and the coronavirus disease means Covid-19. This Act grants wide powers to the police to suspend public gatherings, to detain people suspected to be infected by Covid-19 and for the Government to intervene in a number of industries to limit the spread of Covid-19. Related regulations are The Health Protection (Coronavirus) Regulations 2020 which came into force on 10 February 2020 which supplement the provisions of the Public Health (Control of Diseases) Act 1984. The regulations allow for the designation of certain buildings as isolation facilities and for people to be kept in isolation where there is a reasonable risk of spreading Covid-19. The Coronavirus Act 2020 has a 2 year time limit (25 March 2022) and can be extended by 6 months at government ministerial discretion, although the Act is subject to 6 monthly renewal by Parliament. It is apparent that the UK Government felt they needed the powers afforded by this additional legislation to provide an effective legal framework for its response to Covid-19. This may have been due to the out-of-date nature of the law relating to infectious diseases and public health generally, the framework for which dates back to the mid-19^th Century.

Given provisions in the Covid-19 legislation to delay or prevent the eviction of residential and business tenants from their properties and supporting employers to pay their employees 80% of their wages if they cannot work due to Covid-19, it is probable that a post-Covid-19 UK will face difficult legal and ethical questions regarding the extent to which certain laws should be amended for the public good generally. There will undoubtedly be a knock-on effect on the laws regulating a number of industries and workplaces and relating to issues affecting us all. The Covid-19 pandemic and the UK Government’s response to it will hold a clear mirror up to our laws and societal structure. There will be permanent changes to both but, for the moment, it is not yet known the extent to which the Law of Pandemics will become the Law of the Land.

BOOK RECOMMENDATIONS: Landmark Cases in Criminal Law & Landmark Cases in Public Law

Landmark Cases in Criminal Law

Edited by Phil Handler, Henry Mares and Ian Williams

Criminal cases raise difficult normative and legal questions, and are often a consequence of compelling human drama. In this collection, expert authors place leading cases in criminal law in their historical and legal contexts, highlighting their significance both in the past and for the present.

The cases in this volume range from the fifteenth to the twenty-first century. Many of them are well known to modern criminal lawyers and students; others are overlooked landmarks that deserve reconsideration. The essays, often based on extensive and original archival research, range over a wide spectrum of criminal law, covering procedure and doctrine, statute and common law, individual offences and general principles. Together, the essays explore common themes, including the scope of criminal law and criminalisation, the role of the jury, and the causes of change in criminal law.

Philip Handler is a Senior Lecturer in the School of Law at the University of Manchester.

Henry Mares is John Thornely Fellow, and Director of Studies in Law at Sidney Sussex College, Cambridge.

Ian Williams is a Senior Lecturer in the Faculty of Laws at University College London.

May 2017   |   9781849466899   |   384pp  |   Hardback   |   RSP: £80

Discount Price: £64

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Landmark Cases in Public Law

Edited by Satvinder Juss and Maurice Sunkin

Landmark Cases in Public Law answers the need for an historical examination of the leading cases in this field, an examination which is largely absent from the standard textbooks and journal articles of the day. Adopting a contextualised historical approach, this collection of essays by leading specialists in the field provides both an explanation of the importance and impact of the chosen decisions, as well as doctrinal analysis. This approach enables each author to throw light on the driving forces behind the judicial outcomes, and shows how the final reasoning of the court was ultimately as much dependent upon such human factors as the attitudes, conduct, and personalities of the parties, their witnesses, their counsel, and the judges, as the drive to seek legal realignment with the political developments that were widely perceived to be taking place. In this way, this form of analysis provides an exposition of the true stories behind these landmark cases in public law.

Satvinder Juss is a Professor of Law at King’s College London.

Maurice Sunkin is Professor of Public Law and Socio-Legal Studies at the University of Essex.

June 2017   |    9781849466035   |   376pp  |   Hardback  |   RSP: £80

Discount Price: £64

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BOOK RECOMMENDATION: The Lawyers Who Made America

The Lawyers Who Made America

From Jamestown to the White House

Anthony Arlidge QC

No other nation’s creation, both politically and socially, owes such a debt to lawyers as the United States of America.  This book traces the story of that creation through the human lives of those who played important parts in it: amongst others, of English lawyers who established the form of the original colonies; of the Founding Fathers, who declared independence and created a Constitution; of Abraham Lincoln, Woodrow Wilson, Justices of the Supreme Court and finally Barack Obama.  Even Richard Nixon features, if only as a reminder that even the President is subject to the law.  The author combines his wide legal experience and engaging writing style to produce a book that will enthral lawyers and laymen alike, giving perhaps a timely reminder of the importance of the rule of law to American democracy.

Anthony Arlidge has been a Queen’s Counsel for over thirty five years, appearing in many high profile cases.  He has submitted written amicus briefs to the Supreme Court of the United States and the Santa Monica Court of Appeals.

April 2017   |    9781509906369   |   232pp   |   Hardback   |    RSP: £25

Discount Price: £20

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History of the Referendum

It is fair to say that the result of the United Kingdom’s Referendum on continued membership of the European Union is one of the most controversial and fiercely debated topics in modern English Legal History. Rafts of previously silent Constitutional Lawyers have entered the arena to voice their opinions.

This ferocity has been an enduring theme surrounding Referendums since the earliest discussions regarding their introduction. The central pillar of controversy is that Referendums are arguably contrary to the concept of Parliamentary Sovereignty. This is the principle that Parliament, acting by its Members and Lords, can make or unmake any law whatsoever. Theoretically, if Parliament wants to pass an Act that mandates the slaughter of all blue-eyed boys, Parliament can do so. Practically this might present difficulties, but it is correct as a matter of English Constitutional Law.

The greatest advocate of Parliamentary Sovereignty was Constitutional theorist Albert Venn Dicey in 1885. Bizarrely, it was also Dicey who first advocated the introduction of Referendums in an 1890 article, a mere 5 years after the publication of his renowned text on Parliamentary Sovereignty. Dicey believed that Referendums could act as a direct democratic check against the corruption of elected parties. Dicey stated that the people could act as ‘Political Sovereign’.

Dicey wanted a Referendum on the subject of Irish Home Rule to try to defeat Ireland’s attempt to govern itself in the late 19^th Century, but he was unsuccessful. In the early 1900s, Members of the Conservative party suggested using a Referendum every time the House of Commons and House of Lords disagreed on a Bill, but this was roundly rejected. Moreover, in 1903 Joseph Chamberlain unsuccessfully suggested a Referendum on the issue of tariff reform. This reform, fittingly, was to be a departure from free trade towards imposing custom duties on foreign imports.

The other main suggestion of this era (again rejected) was made by Winston Churchill in 1910 who recommended a Referendum as a means of answering the question of Women’s Suffrage.

Over the next several decades, the idea of Referendums became increasingly unpopular in England due to their use by dictators as a tool of oppression. By way of example, Hitler held a Referendum in 1934 to effectively give himself ultimate State power. Groups of people were escorted to polling stations by Nazi soldiers and then had to vote in public. Some ballot papers were pre-ticked ‘Yes’ and forgeries were so common in some regions of Germany that the number of votes cast was greater than the total number of people entitled to vote.

The next major suggestion was again made by Winston Churchill in 1945 to answer the question of whether his Second World War government coalition should continue until Japan had been defeated. In response, Clement Atlee described the concept of Referendums as ‘alien to all of our traditions’. In the decades after the Second World War, Referendums were barely mentioned; no issue seemed important enough to warrant a Referendum. Atlee’s sentiment was echoed by Margaret Thatcher in the 1970s, however this did not dissuade Harold Wilson from promising and implementing the first ever UK nationwide Referendum in 1975.

The United Kingdom has only held 3 nationwide Referendums. The first was on 5 June 1975 to decide whether to continue as a member of the European Economic Community (now the European Union) (67.23% Yes), the second was on 5 May 2011 to decide whether to adopt the Alternative Vote system (67.9% No) and, finally, on 23 June 2016, whether to continue as a member of the European Union (51.89% No).

Over the years, there have been various regional Referendums, mostly concerning the devolution of powers to Scotland, Northern Ireland and Wales (notably the Scottish Independence Referendum of 2014 – 55.3% No).

Although nationwide Referendums were firmly rejected in the early 1900s, the argument against them was not as strong for more localised Referendums and these were carried out from 1913. For example, in 1913 local areas in Scotland held Referendums on whether to implement the prohibition of alcohol. Of particular interest is that from 1881 pubs in Wales legally had to be closed on Sundays. In 1961, local areas of Wales were permitted to have a Referendum on whether they wanted Sundays to be ‘wet’ or ‘dry’ and for further Referendums asking the same question to take place every 7 years. Sadly, the Welsh pub Referendums were abolished in 2003.

Finally, since 1972 the people of local Parish areas have been able to call for a local Referendum, called ‘Parish polls’, to answer questions on community issues. These tend to be on local planning concerns and rarely have a turnout of more than a few hundred voters.

It is clear that Referendums are not new to English Legal History but are not by any means entrenched as an English democratic principle. Indeed, a system to govern Referendums was only put in place in 2000. The Electoral Commission oversees the conduct of Referendums and consults on how understandable the phrasing of the proposed Referendum question is. The recent EU membership Referendum has been so divisive that, on hearing a challenge, the High Court has held that Article 50 of the Treaty on European Union (relating to the withdrawal of a Member State from the EU) cannot be used in the UK without an affirmative vote in Parliament.

The UK Government has stated it will appeal this judgment and we will have to wait and see what the appeal decision will mean for the future of Referendums in English Legal History. One thing is certain, party leaders are going to think very carefully before including Referendum promises in their political Manifestos in the future.

History of the University of Law

 The University of Law’s Guildford Centre (Braboeuf Manor)

Before discussing the specific history of the institution, we must look briefly to the 18th and 19th Century history of legal education in general.

An early regulator asserting some form of professional control on solicitors was the Society of Gentleman Practisers in the Courts of Law and Equity, which was established in 1729 (for a full discussion of this regulatory development and Articled Clerks in general, please see my blog post on the History of the Training Contract). This body had the aim of improving the standards and reputation of solicitors.

In 1823, several attorneys related to this group desired the establishment of the London Law Institution, again to ensure good practice amongst solicitors. The Law Institution was established in 1825 (London having been dropped), although its full formal title was the Society of Attorneys, Solicitors, Proctors and others not being Barristers, practising in the Courts of Law and Equity of the United Kingdom. By 1903, it had changed its name to the Law Society, although it had been colloquially known as this for years beforehand.

The Law Society began lectures for Articled Clerks in 1833. However, mandatory requirements as to examination before entering, and during, your Clerkship were not introduced until 1860 and practical powers to conduct these examinations were not given to the Law Society until 1877. Initially, the Law Society employed a staggering 3 lecturers who each gave between 9 and 12 lectures annually. By 1863, tutorials were offered to support smaller groups of students and in 1879 a 4th lecturer was hired. Furthermore, in 1893, 2 tutors were hired to assist specifically with the tutorials.

The Law Society had an extensive library which was open every day between 9am and 9pm (except for a summer term when it closed at 6pm, or on Saturdays when it closed at 4pm). Articled Clerks were allowed to access the materials if they paid an annual subscription of £2.

This development built up to the Law Society opening its School of Law in 1903, an institution which by 1908 had 10 employees. In a trend as old as education itself, attendance at the Society’s lectures was low and actually declined due to the intense competition of a private legal tutorial firm, Gibson & Weldon, who opened their doors in 1876. Students were not obligated to attend lectures and 88% of those who took the Law Society’s examinations attended none of the Society’s lectures.

In 1922, the Law Society required a mandatory year of lectures before sitting the middle of 3 examinations, the Intermediate Examination. Gibson & Weldon was the Law Society’s fiercest competitor and the Society negotiated a merger between them and its School of Law in 1962. The combined body was called the College of Law. The College was created in its official legal form by a Royal Charter of 1975.

In a trend that has continued, the tuition fee for a 1 year course at the College of Law was expensive; £914 in 1979 and for full-time Legal Practice Courses (a course replacing the old Final Examination) starting in September 2015; £14,750 at the London centres. A major change to the College of Law occurred in 2012 when it was granted full University status and changed its name to the University of Law. The re-branding and implications of this change are still being implemented as at 2015 and are likely to continue for several years to come.

From 1962 and over the following decades, the College of Law established itself as the premier provider of legal education and is a universally known and respected name amongst the legal profession. A range of centres were opened at locations across the UK, alongside the offering of a variety of courses. The University of Law now offers an undergraduate LLB law degree and has recently announced an MSc Masters degree in Law, Business and Management.

The University continues to be at the forefront of legal education and is heavily involved in the development, facilitation and improvement of the provision of, and access to, legal education. For example, through its fledgling Legal Services apprenticeships and a foundation course enabling international students, on completion, to study at undergraduate level at the University.

The University of Law is an institution with deep historical roots and, considering the dynamic changes in the regulation of legal education and changes in how the legal profession needs to operate to thrive, we may see further changes in decades to come.