Covid-19 and Public Law

Covid-19 and Public Law

About Allan DoughtyAllan Doughty

Jeremy’s practice focuses on tort law including negligence and personal injury cases, contractual disputes, human rights and antidiscrimination law, constitutional law, public law and judicial review, medical law including clinical negligence, coroners’ inquests, privacy law, and professional disciplinary law.

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On the 18 March 2020, the first Covid-19 case was diagnosed in Bermuda. During the “first wave” of the Covid-19 Pandemic, the Government of Bermuda has taken extraordinary measures to deal with the crisis through the declaration of an emergency passed pursuant to Bermuda’s Constitution, a “Shelter in Place Order” and further restrictions passed through emergency regulations passed pursuant to the Constitution and its subordinate legislation.

We have considered the impact of these regulations on constitutional rights earlier this year:

As spring gave way to summer, the Government of Bermuda allowed the emergency powers afforded by the Constitution to lapse. In their place, the Government instead legislated new emergency powers that are passed pursuant to the Public Health Act. Unlike the regulations initially passed pursuant to the emergency powers of the Constitution, the new regulations are fully subject to the guarantees of fundamental freedoms enshrined in Constitution which may be reviewed by the Court.

To date, we are unaware of any of the new regulations brought in as a result of the Covid-19 pandemic being challenged pursuant to the Constitution. If, however, such a challenge was to be made, it would be up to the Supreme Court of Bermuda to determine whether the regulation in question was overly broad or proportionate and necessary for the protection of society.

While the pandemic is far from over, and further uncertainty exists as we appear to be entering the “second wave”, one thing is clear: regulations can, and will, be passed by the Government which may rapidly respond to the Covid-19 threat.