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Dear Friends

As the Coronavirus lockdown continues, both in the UK and most of the rest of the world, the challenges it poses to the Rule of Law come into ever sharper focus. This week the Bingham Centre has been actively involved in many of the discussions and debates about those challenges.

One of the Rule of Law issues that becomes increasingly pressing as the lockdown goes on is the legal uncertainty about exactly which of our normal activities outside the home are permitted and which are forbidden. Can we sit on the grass in the park during a break from our permitted daily exercise? Can we exercise outside more than once a day? Which shopping is essential? And what are the police's powers in respect of these fine judgments? These are of huge practical significance because the degree of public compliance required with the lockdown restrictions depends on public acceptance and trust. These issues are considered in the comment piece Covid-19: When is a Rule not a Rule?   by Ronan Cormacain, Senior Research Fellow in the Rule of Law Monitoring of Legislation, which investigates the difference between rules and guidance and asks whether the government has been risking public trust by elevating guidance to the level of compulsory laws.

Another increasingly pressing Rule of Law issue, also relevant to the public's trust and confidence in the Government's response, is the democratic accountability of the Government for the way it is handling the crisis. In a Bingham Centre comment piece, Nyasha Weinberg, Research Fellow in Rule of Law Measurement, argues that "Parliament re-opening will help the government defeat Covid-19" . Parliament's work in scrutinising Government is never more important than in a crisis. Emergencies sound the hour of the executive , where it plays an essential role in coordinating and delivering an urgent and effective response. This has certainly been the case with COVID-19, with Ministers granted additional powers to mobilise a rapid response to the lethal danger posed by the virus.

While it is clear that special measures are required to cope with this extraordinary situation, it is essential to the Rule of Law that Parliament sits. The concentration of law-making power in the executive branch, flowing from the powers granted under the Coronavirus Act 2020, disturbs the usual equilibrium between the branches of government. Unless Parliament is able to carry out its legislative function, and provide challenge to delegated legislation, there is a risk that the executive may over-use its powers. Even during public emergencies, the institutions ensuring executive accountability in a democracy must continue to function.

We have also been actively involved in efforts to monitor the detailed response to the Coronavirus emergency in other countries. Dr Julinda Beqiraj, Maurice Wohl Research Fellow in European Law wrote a comment piece on "Italy's Coronavirus Legislative Response: Adjusting Along the Way" . The comment was published on the Verfassungsblog and is part of a symposium , where comparative country reports examine the use of emergency powers from the perspective of democracy, human rights, and the Rule of Law.

Julinda's comment piece discusses Italy's efforts to make sure that constitutional principles, international law obligations and the Rule of Law still prevail even in the time of COVID-19. The response to COVID-19 by the Italian government has been progressively adjusted to include safeguards such as a clear statement of the temporary nature of the measures, a strong anchoring of the measures to the principles of necessity and proportionality, publicity of the measures adopted and a reporting obligation to Parliament every fifteen days on the measures taken.

Read our Weekly Update here 

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