Prof. Stéphanie Laulhé Shaelou, Professor of European Law and Reform and Head, School of Law, University of Central Lancashire, Cyprus campus (UCLan Cyprus)
Ms. Andrea Manoli, PhD Candidate, University of Central Lancashire (UCLan), Associate Lecturer and Research Fellow, Jean Monnet Module EU-POP, School of Law, UCLan Cyprus
The authors would like to thank Dr. Klearchos Kyriakides, Deputy Head and Assistant Professor in English Law, Constitutional History and Professional Skills, School of Law, UCLan Cyprus, for his comments and review of this blog post. Any errors remain our own.
The authors would also like to disclose the following interest: Prof. Stéphanie Laulhé Shaelou is registered on the COVID-19 Outbreak Expert Databases of the UK Parliament on the one hand, and of the UK Government on the other. She has participated to a series of trainings, briefings, surveys and/or outputs in this capacity.
In the past months, countries across the world, no matter their size and location, have been confronted by multiple challenges due to the coronavirus pandemic. Under English law, of interest to this blog post, coronavirus and COVID-19 have distinct legal meanings. ‘Coronavirus’ means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) whereby ‘coronavirus disease’ means COVID-19 (the official designation of the disease which can be caused by coronavirus). For the purpose of the current legal analysis, the terms ‘coronavirus’ and ‘pandemic’ will be used together and/or interchangeably in view of the declaration of the pandemic by WHO on 11 March 2020. Amid the pandemic, governments, international agencies, institutions and businesses all announced measures adapted to their needs, in an attempt to ‘flatten the coronavirus curve’ and address its tragic consequences. As blog posts of an Online Symposium and other sources reveal, extraordinary temporary measures taken at the national, European, international and/or global level entail severe interferences with freedoms and other rights, potentially at the expense of the Rule of Law. Extraordinary powers are primarily in the hands of the executive, allegedly underpinned by expert advice, scientific and/or medical, but much less so legal, with mixed results. Emergency measures have tried to preserve the sense of togetherness across the globe, including on the European continent, through rapid coordinated intervention and other emergency mechanisms, duly monitored. Unfortunately, monitoring reveals the tragic daily increase of the number of reported cases and deaths throughout the EU, the EEA and the UK. Looking at the data provided by the European Centre for the Prevention of Disease and Control (ECDC), it is striking to note the contrasting fortune of two island states in their fight with the pandemic: Cyprus with one of the lowest ratios of reported deaths per 100,000 population, while the UK record one of the highest ratios of reported deaths and of sums of cases and deaths in the EU, EEA and UK. In the second half of May 2020, the numbers have been contrasting sharply day after day, with the number of reported deaths rising in the UK while falling in Cyprus. As put by Sir Keir Starmer QC MP to the UK Prime Minister on 6 May 2020, the day of his return to the UK Parliament following his own recovery from the COVID-19 virus, ‘[t]hat is not success, or apparent success, so can the Prime Minister tell us: ‘how on earth did it come to this?’.
The present blog post proposes to tackle a number of issues, with the aim of conducting a preliminary investigation into the initial responses to the pandemic in three jurisdictions, namely the UK with a primary focus on England, the Republic of Cyprus and the adjacent Sovereign Base Areas (‘SBAs’) on the Island of Cyprus. In view of the recent Bashir case, there is now little ‘constitutional doubt’ that the SBAs represent the ‘rump’ of the Crown Colony of Cyprus. On top of the deep connection provided through the SBAs, the two sovereign states and their territories are also long and deeply inter-linked to each other through their relationship with and/or within the EU as well as within the Commonwealth (despite the absence of the SBAs from the official list of associated and overseas territories).
Following a brief account of the relationship between the two sovereign entities, two inter-related questions of importance to the preservation of the Rule of Law in times of pandemic will be examined. Firstly, to what extent has the principle of precaution central to the EU, its Member States – both present and past – and their territories, been upheld in the context of the COVID-19 pandemic? Secondly, as COVID-19 spread across the EU during the critical months of March to May 2020, was there effective coordination between the EU, Cyprus as a Member State, the UK and/or any territories thereof?
The linchpin between the UK and the Island of Cyprus
Historically, under English Law, the Island of Cyprus was part of the British Empire’s protectorate (1878-1914), was then annexed to the Crown in 1914 thereby becoming a colony (1914-1925), and was eventually awarded the title of a Crown Colony from 1925 to 1960, date of its independence. Throughout that period, the Island was subjected to English rules and values while also retaining heavy doses of Islamic, Ottoman and Turkish rules and values.
Apart from the common law system, the most emphatic heritage from British times on the Island, still visible to date, is the SBAs. A territory amounting to 3% of the Island was retained by the United Kingdom, preserving as such colonialism in the Island up until today. The international status of the SBAs and their relations with the Republic of Cyprus are governed by the Treaty of Establishment of the Republic of Cyprus signed on 16 August 1960 between the United Kingdom, Greece, Turkey and Cyprus, as well as associated exchanges of notes. This by itself exemplifies the extraordinary triangular relationship between the Republic of Cyprus and the United Kingdom through the SBAs, explaining the comparative approach taken in this blog.
The Republic of Cyprus acceded to the EU in May 2004 as one island. Due to the extraordinary de jure triangular relationship and the de facto division of the Island since 1974, a unique legal regime was designed for Cyprus in the EU. The Union acquis was suspended in territories not under the effective control of the Republic of Cyprus due to the ongoing occupation by Turkey of the territory of the Republic of Cyprus in the Island of Cyprus. At the same time, EU law became applicable selectively in the SBAs, in an effort to ensure equal treatment of Cypriots living and working in the SBAs with other Cypriots in the Republic. Pending the completion of the post-Brexit transitional period and in the framework of the EU-UK Withdrawal Agreement which entered into force on 1 February 2020, the SBAs in Cyprus retain a partial application of the Union acquis. More importantly, the EU-UK Withdrawal Agreement refers to ‘the external borders of the SBAs’, thereby creating serious risks of disrupting ‘boundaries’ on the Island, as enshrined in the Cyprus Act 1960 and the Treaty of Establishment 1960, as well as the post-1974 cease-fire lines, none of which constitutes de jure borders of the Island. All these dimensions keep alive the extraordinary triangular relationship between the UK, the Republic of Cyprus and the SBAs ‘in and out’ of the EU. Amid the COVID-19 pandemic, the historical and legal connections between the two sovereign states and their territories, as well as their multiple legal ramifications in the EU context, call for a carefully coordinated response to the public health disaster among these island jurisdictions.
Precautionary and effective coordination in island states, a panacea in times of pandemic
The preservation of the Rule of Law in times of pandemic requires, among other measures, the robust application of general principles of law. These principles include precaution and effectiveness to any coordinated approach to a public health crisis at the national and supranational level. More than others, given their geographical or other specificities, the success of island states such as Iceland, Malta, New Zealand and Japan, in containing the COVID-19 pandemic, is largely dependent on a coordinated and robust understanding and application of such principles to the protection of public health. Of particular relevance to island states are precautionary isolation measures, such as quarantine, as recommended for a period of 14 days by the WHO and the ECDC in the context of the COVID-19 pandemic, strictly followed by the Republic of Cyprus, but much less so by the UK Government and Public Health England.
Border measures are also of fundamental importance to the precautionary strategy of island states, but can be difficult to put in place in case of any ‘porous’ border, such as the one between the UK and Ireland. While the possibility to travel to the UK was not subject to strict rules for travellers coming into the UK until June 2020, flights and ferry services continue to operate between Ireland and Great Britain. The same can be true of other borders which the UK may share with an EU member state like France. On the other hand, the Republic of Cyprus adopted and extended on the territory it effectively controls restrictions on non-essential journey in a coordinated effort between Schengen Member States and Associated States (the ‘EU+ area’, including the Republic of Cyprus but not extending to the UK). In the territory of the Republic of Cyprus under Turkish occupation, the ‘authorities’ of the internationally unrecognised ‘TRNC’ (as per the case of Loizidou v Turkey, a de facto subordinate local administration of Turkey), have reportedly successfully fought the pandemic after imposing, among others, lockdown, international travel restrictions and quarantine measures. Crossing points between the two sides were initially closed, but are due to reopen gradually.
Amid the sheer number of measures taken at all levels in a coordinated effort to contain the COVID-19 pandemic in Europe, the timing of such measures is also of essence to their effectiveness. On the island of Cyprus, despite a slow start and unlike the situation in mainland Britain, the SBAs broadly implemented the same measures as in the Republic of Cyprus by enacting an ordinance consolidating the decrees of the Republic and extending it before the expiry of the sunset clause. On the other hand, and unlike other hardly hit countries in Europe, the United Kingdom had more time to prepare for the extensive outbreak. Nevertheless it chose to handle the pandemic through ‘herd immunity’, affecting whole segments of the population, before eventually resorting to lockdown as the right to life and access to public health were in real danger. Thus, initially at least, precautionary and effective coordination did not appear to be the main driving force behind any strategy of the UK Government.
COVID-19 responses on the islands of Cyprus and Great Britain: lessons from history?
In the framework of the Constitution of the Republic of Cyprus and its long-standing constitutional anomaly, Chapter 260 of the Laws of Cyprus was triggered on 10 March 2020. The Quarantine Law, Cap. 260, is a short colonial law initially created during British time on the Island in 1932 and amended from time to time, in 2003 and 2020. Under Article 188 of the Constitution of Cyprus, pre-existing colonial legislation continues to be in force until amended and/or replaced by the legislature. The connection of the Republic with the British era is so deeply rooted that it was not until 2003 that any reference to the term ‘Governor’ was replaced with the terms ‘Minister of Health’ in Cap. 260. The Law offers a wide margin of discretionary powers to the Council of Ministers to declare a dangerous infectious disease within the meaning of the Law. Such measures include the regulation of the movement of goods and persons through decrees, to provide for adequate equipment, facilities and to determine such other measures as to prevent the spread of any disease. The Law also provides for a Network for Epidemiological Surveillance and Control of Infectious Diseases, implemented early on during the COVID-19 pandemic. All decrees, notices and regulations issued under the Law remain in force until revoked, replaced or amended, potentially inviting the executive to maintain the measures beyond reasonable time. The extent to which such measures lead to the precautionary and effective coordinated approach to the fighting of the pandemic is questionable. Among the many concerns arising out of the triggering of Cap. 260 is the fact that out of the 24 Decrees issued in accordance with the Law, only 7 were officially translated in the English language, while some COVID-19-related information was provided in various languages including Turkish, one of the two official languages of the Republic. The lack of meaningful social contract in the Republic of Cyprus, partly due to its colonial history, usually translates into the absence of wide and inclusive public consultation. The fact that the Government may follow scientific advice in this specific instance cannot replace mechanisms of direct democracy. The special context of the Quarantine Law can only exacerbate the debate around the preservation of the Rule of Law in times of COVID-19. The anachronistic nature of Cap. 260, offering a wide range of powers to the executive, also means that there is a need to read the Law in conjunction with other emergency laws in order to gain a holistic understanding of the measures taken in the Republic of Cyprus, and a constant need for scrutiny of powers granted. Nevertheless, despite the colonial roots of Cap. 260 and any uneasy relation with other measures, it could appear from initial investigations that the powers conferred upon the executive were exercised with sufficient precaution, diligence and coordination to render it a relatively effective piece of legislation to fight the COVID-19 pandemic. As measures are gradually lifted, their lawfulness is an ongoing concern.
In the UK, on the other hand, in what was perceived as a delayed reaction, ‘emergency powers’ were introduced in a 359 page-long Act of Parliament which received royal assent on 25 March 2020. The Coronavirus Act 2020 is an enabling legislation which provides all four governments across the UK with the ability to take quite comprehensive action in multiple areas related directly or indirectly to public health. The Coronavirus Act 2020 contains a sunset clause which preserves the Act for two years, with the possibility of extending that said Act for a further six months. The aim appears to be to enhance the ability of public bodies across the UK to provide effective responses and ‘flatten the peak of the epidemic’ by bringing forward the right measures at the right time. The Act strikes as being a modern and power-intense piece of legislation but may lack effectiveness. Despite the express focus in the Act on strengthening professionals, healthcare workers reportedly struggled to access basic equipment, among others. The Act also stoked controversies through the granting in particular of powers to police and immigration officers to detain people believed to be infected and making it a criminal offence to resist such detention. The Act is supplemented by other Statutes which provide for specific lockdown powers such as the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004. Extensive secondary legislation, such as the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 also supplement the primary legislation. The Regulations emphasise what seems to be a fragmented approach because of the devolved nature of governance in Wales, Scotland and Northern Ireland. Thus, despite a seemingly more exhaustive panoply of measures in a modern regulatory framework, there seems to be some ineffectiveness in the UK Government’s approach to the measurement, precaution and coordination in the reaction to the pandemic. A parliamentary report points to the inability on the part of the UK Government to cooperate at EU level during the pandemic, as well as to the difficulties associated to the post-Brexit transitional period, where ‘the UK has no formal say in shaping EU law’. While the UK remains eligible for EU funds, it is also expected to embrace certain EU rules in times of COVID-19, such as common rules on exports for medical supplies.
While the old colonial-time designed measures in the Republic of Cyprus gradually began to be lifted as of mid-May 2020, the UK did not seem to have the same fortune. Drawing lessons from its relations with other island states such as Cyprus, from its territories such as the SBAs and/or as a Member State of the EU for the past 50 years, may have proved useful for the UK, in an effort to protect the right to life and access to public health and uphold the Rule of Law during these difficult times.
While the Republic of Cyprus applied early on the principles of precaution and effective coordination largely originating at the EU level, the UK theorised the situation until it was too late. Pending the completion of the post-Brexit transitional period, the UK however falls within the scope of the multifaceted EU Coronavirus Response. Even though the UK Prime Minister may have tried to downplay the need for coordination ‘in and out’ of the EU, there may well be a revival of the principle of European solidarity at the heart of the Rule of Law, embracing also EU neighbouring countries like the UK. The COVID-19 pandemic has reinstated and reinforced the need for effective international and regional coordination to which the UK needs to contribute, and can benefit from, even in a post-Brexit transitional period. Enhanced coordination and solidarity are also required during the de-escalation and recovery phases of the pandemic. These appear to be aspects of Brexit, exposed by the pandemic, which had not been sufficiently thought through during the negotiations, to the detriment the Rule of Law.