2The Government’s approach to legislation and the framework for Parliamentary Scrutiny
15.This chapter examines the swift passage of the Coronavirus Act and considers the argument that the Civil Contingencies Act 2004 could have been used as a “stop-gap” to facilitate more detailed Parliamentary scrutiny.
The passing of the Coronavirus Act 2020
16.As set out in chapter 1, the Coronavirus Bill was passed into law in just four sitting days including the date of First Reading. The Government also worked at great pace to draft the Bill quickly; the Minister for Health, Edward Argar MP, described “three and a half weeks’ worth of very intense work on drafting it, working with other Government Departments and tweaking the Bill as we understood more about the disease week by week.”16
17.Subsequent scrutiny of the Coronavirus Act and the Government’s approach to COVID-19 is important because there was not sufficient time for thorough scrutiny to take place in those four days. As Sir Stephen Laws, former First Parliamentary Counsel, told us:
What you are usually doing with emergency legislation is substituting proper scrutiny for subsequent accountability, both because there is no time for the proper scrutiny and also because, very often in the sort of situation in which you are passing emergency legislation, there is not the political room for proper scrutiny either.17
18.As a result of the timescales involved and the political situation, detailed scrutiny of the Coronavirus Bill was not practical. It is therefore very important that Government is held to account for how it uses and justifies the continued application of the Act. In chapter 4 we set out some points of interest to the House for the first six-month Parliamentary review, particularly in relation to the information that the Government needs to provide to help facilitate effective Parliamentary scrutiny.
A role for the Civil Contingencies Act?
19.The Civil Contingencies Act 2004 (CCA) is the main piece of legislation that deals with civil emergencies in the UK. Thus far, the Government has opted not to utilise it as part of its Coronavirus response.18
20.The CCA was introduced as part of an overhaul of the UK’s civil contingency machinery. The then Government felt that a succession of civil emergencies had highlighted shortcomings and, in particular, its roots in Cold War-era civil defence.19 The overhaul saw responsibility shift from the Home Office to the new Civil Contingency Secretariat in the Cabinet Office. A public consultation on new legislation was launched in February 2001. This resulted in a draft bill which was the subject of pre-legislative scrutiny by a joint committee, as well as scrutiny by other select committees.20
21.The Act is divided into two substantive parts:
- Part 1 places a series of duties on local bodies (Category 1 Responders) to assess the risk of an emergency and create and maintain plans for dealing with potential emergencies.
- Part 2 sets out how powers are conferred on the Government and in certain limited circumstances enable senior Government ministers to make regulations when an emergency has occurred or is about to occur.
22.Section 19 of the Act defines an emergency as:
a)an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region;
b)an event or situation which threatens serious damage to the environment of the United Kingdom or of a Part or region; or
c)war, or terrorism, which threatens serious damage to the security of the United Kingdom.21
23.The Explanatory Notes to the CCA clarify that events “such as a terrorist attack, disruption of fuel supplies, contamination of land with a chemical matter and an epidemic could satisfy the definition, should they reach the required level of seriousness”.22
24.To balance the exceptional powers that the CCA grants a government to respond to an emergency, as well as the broad definition of what constitutes such an emergency, the Act includes legal and Parliamentary oversight designed to prevent its inappropriate or disproportionate use. Emergency regulations made under Part Two of the Act must be laid “as soon as reasonably practicable”, and lapse after seven days from the day of laying unless a resolution approving the regulations is passed by each House. An emergency regulation, once made, lapses after 30 days, at which point the Government can re-introduce those regulations. Under s27 of the Act, Parliament can later annul or amend a regulation by resolution.
Legal arguments for and against using the CCA
25.Epidemics are included in the list of types of emergency for which the CCA might be utilised. However, in evidence to the Committee in April, the Chancellor of the Duchy of Lancaster said the circumstances were not appropriate for its use. The CCA, he argued, is designed to address sudden, unanticipated events rather than the gradual onset of an epidemic:
the powers that [the CCA] confers upon Government are sweeping and it is specifically designed—and this was the clear advice—to be used when you have an unexpected bolt from the blue rather than when you have something that is, as we saw, a developing threat.23
26.The Leader of the House had earlier made the same point in the Chamber:
Unfortunately, the Civil Contingencies Act would not have worked in these circumstances, because the problem was known about early enough for it not to qualify as an emergency under the terms of that Act.24
27.Rt Hon Michael Gove MP, the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, suggested that that there was time for bespoke legislation to be passed by Parliament demonstrates that the CCA should not have been used. To do so would have left any measures made under it open to challenge.
There is a risk—the rule of law applies throughout—that using the CCA would have been and could have been challenged on the basis that its use was inappropriate in circumstances where some of the requirements for dealing with the Coronavirus were foreseen in advance.25
28.Such an argument would appear to severely limit the circumstances in which the Act can actually be used. This interpretation has been rejected by one of those responsible for drafting the Act,26 and when we asked the legal experts about the Government’s argument, they all also took the view that the Government was incorrect in its reading of the Act. Professor Aileen McHarg, Professor of Public Law and Human Rights at Durham Law School, said it was not clear why the Government took this view of the Act, and that the COVID-19 emergency, and pandemic emergencies in general, clearly falls within this act. She set out that:
Section 19 clearly envisages an event that threatens severe damage to human welfare, including loss of human life and human illness, so it is within the scope of the Act.27
29.The Institute for Government noted that the Coronavirus Act 2020 had two benefits:
- The Coronavirus Bill was subject to parliamentary scrutiny and subject to amendment; and
- The Coronavirus Act is not itself subject to judicial review (in contrast to regulations made under the Civil Contingencies Act.)28
However, the use of the Coronavirus Act did allow the Government to avoid the safeguards of the Civil Contingencies Act. The IFG argued it would have been preferable to have “primary legislation with proper safeguards” instead of the Civil Contingencies Act.29
30.In its written evidence, the Government said:
Although the measures in the Coronavirus Act were urgent, on this occasion there was time to pass conventional legislation, which allowed for prior Parliamentary scrutiny to the measures being introduced. The Civil Contingencies Act has strict tests (known as the “triple lock”) which must be met before emergency regulations under it can be made. In order to employ emergency powers, the three tests that must be passed are:
- that an emergency has occurred, is occurring or is about to occur;
- the provisions sought are necessary for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency;
- the need is urgent, and existing legislation and other means would risk serious delay.
This triple lock test ensures that it is only used when there are no other legislative options available to the Government and ensures that Parliamentary scrutiny is not unnecessarily sacrificed. In this case, there were other options available and, therefore, its use was not necessary or appropriate.30
31.While the triple lock is there to ensure that the Government has to meet strict tests, at no point in this guidance or in the Act itself is potential legislation mentioned or time to pass legislation mentioned. The only reference is to existing legislation and other means risking serious delay. The decision to pass emergency COVID legislation would therefore appear to be a political one based on political preference and not on legal requirement.
32.In oral evidence, Katharine Hammond, Head of the Civil Contingencies Secretariat, argued that the spirit of the Act is that it should be used as a last resort only and that where a piece of legislation could be taken through Parliament instead, that ought to be done.31 In response to questioning, the Paymaster General, Penny Mordaunt, asserted that the decision not to use the Civil Contingencies Act was a legal, not political one.32 In a letter following up the evidence session, however, Ms Mordaunt stated that the use of the Coronavirus Act gave “greater legal certainty”: “CCA emergency regulations would have required parliamentary approval within seven days (if Parliament was still sitting), and could have been amended at that point; could have been struck down in the court as secondary legislation; and would have had to be renewed every 30 days”.33
33.The Minister, Edward Argar MP, argued that the Civil Contingencies Act was not sufficient to cover all the powers that went into the Coronavirus Act. When asked about whether the Civil Contingencies Act could have been used as a “stop-gap” to facilitate more scrutiny of the Coronavirus Act:
The other point is that, although I do not think the CCA would have given the necessary powers even had it been deemed to do so as a stop-gap, there was no certainty—with Parliament going into recess at that point—about how long the so-called lockdown would last, and about when and if Parliament would be able to return anytime soon. Therefore, rather than relying on those powers, however imperfect, for a long time before Parliament might have been able to resume, it was felt important that Parliament had the opportunity early on to debate this. However truncated that process may have been, it was felt better to put that legislation through while Parliament was sitting, rather than to hold off and see whether Parliament might be able to sit in the future.34
34.The Government’s desire to find alternatives, such as bespoke primary legislation, to using the emergency provisions of the Civil Contingency Act 2004 is understandable. Bespoke primary legislation has the advantage of going through the stages of Parliamentary scrutiny. However, the Committee is not convinced that the Civil Contingencies Act could not have been used for COVID-19 and believes there was a potential role for the Civil Contingencies Act in providing a “stop-gap” for more detailed scrutiny of the Coronavirus Bill to take place.” The potential use of the Civil Contingencies Act as a “stop-gap” should be considered by the Government in response to emergencies in the future. Furthermore, the Coronavirus Act does not have the same safeguards as the Civil Contingencies Act. It is troubling the Paymaster General referred to these safeguards as a reason not to use that Act. Any separate legislation to deal with civil contingencies—and particularly legislation that needs to be passed very quickly—should include safeguards and scrutiny provisions that are equivalent to those in the CCA, with regular renewal of powers allowing for more detailed Parliamentary scrutiny that, due to expediency, cannot be given during the passing of emergency legislation.
35.The Government’s reticence to use the Civil Contingencies Act in response to a genuine national emergency calls into question how fit for purpose that legislation is.
Use of emergency procedures for lockdown regulations
36.All regulations covering “lockdown” have been introduced pursuant to, what we describe as an “urgent procedure”, section 45R of the Public Health (Control of Diseases) Act 1984. Under this procedure, statutory instruments are made immediately and must be approved by both Houses within 28 days or they shall cease to have effect.35 The decision to use the urgent procedure for the initial lockdown regulations, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, was accepted by witnesses to our inquiry.36 There were arguable reasons for the use of the urgent procedure; the Government wished to time the introduction of lockdown as accurately as possible, to, for example, minimise lockdown fatigue and there was understandable uncertainty as to when exactly lockdown measures should be introduced.
37.The justification for passing further regulations, particularly regulations that eased lockdown restrictions, under the urgent procedure, is not so clear. Raphael Hogarth from the Institute for Government described some of the issues that arise from the use of the urgent procedure:
First of all, it leads to mistakes. If parliamentarians had had a chance to have a look at the first set of restrictions regulations they might have spotted things like the fact that there was a power for the police to enforce some of the restrictions with reasonable force but not others. They might have tidied that up. They might have raised concerns from constituents about certain reasons for going outside that might not have been covered by those regulations that maybe should be, like going to an ATM. That was subsequently inserted in amendment regulations.37
38.Professor Aileen McHarg was more sympathetic to the Government’s use of the urgent procedure, arguing that since lockdown regulations represented substantial restrictions on people’s human rights, they should be loosened as soon as possible and that normal affirmative resolution procedures would not be appropriate because they would take too long.38
The value of Parliamentary processes and scrutiny
39.Raphael Hogarth gave two arguments in favour of Parliamentary processes. First, he argued that Parliament helps provide legitimacy to emergency legislation because debate is held in public and people can hear the justifications for them. Second, it improves the effectiveness of legislation by giving interested parties an opportunity to identify problems in legislation and lobby MPs to seek to change them.39
40.Limited Parliamentary scrutiny is not simply a mild inconvenience but often affects the quality of legislation. A prime example of potential legislative error arose in the first set of lockdown regulations.40 Under Regulation six as originally enacted, it was an offence for a person to leave the place in which they were living without a reasonable excuse. This gave rise to a question of law, what happens once someone’s reasonable excuse has expired? For example, one of the reasonable excuses was the need to obtain basic necessities such as food. If someone left their home to purchase food, were they compelled to immediately return home after purchasing the food?
41.It is not clear how a court would have interpreted this provision, but the uncertainty was great enough that the Government amended the regulation to make clear that the offence was intended to include both leaving and remaining outside a place where a person was living without reasonable excuse.41
42.These were not the only problems with coronavirus regulations. Both the regulations and the guidance have been criticised for a lack of clarity. For example:
- Judicial review was threatened by parents of children who have autism, who needed to leave the house for exercise more than once a day and/or to be driven to a non-local area for their wellbeing.42
- Domestic abuse charities expressed concern that the Regulations and guidance did not make it clear that leaving home due to the threat posed by an abusive member of the household was covered by the broad exception in reg, 6(m) “to avoid injury or illness or to escape a risk of harm”.43
- Police were reported to be questioning shoppers for buying “non-essential” items despite this not being against the Regulations.44
- A woman was fined £660 under the Regulations for “loitering” at Newcastle station but the finding was overturned when it became clear British Transport Police had used a provision that applied solely to infected persons.45
43.The use of the urgent procedure has also impacted the timeliness of Parliamentary debate. The table below provides examples of when lockdown and face covering measures (excluding local lockdowns) were brought into force and when they were debated by Parliament.
Table 1: Dates of lockdown and face covering regulations and debates
44.As the table above demonstrates, by the time that the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 were debated, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 were already in force and the Amendment (No.4) regulations were never even debated in the House of Commons, although they were debated in the House of Lords.46
45.In relation to the regulations mandating the use of face coverings on public transport, plans for such legislation were announced by the Government on 4 June 2020.47 But the relevant legislation, made on 15 June, was not debated in the House until 6 July.
46.Perhaps one of the starkest examples of less than timely scrutiny and information being made available are the regulations giving local authorities powers to tackle local outbreaks.48 In oral evidence to us, Clara Swinson, Director General for Global and Public Health, Department of Health and Social Care, told us that local lockdowns “had been part of the Government’s strategy from the beginning”.49 On 18 July, nearly four months after the first lockdown regulations were made, regulations giving local authorities the powers to help implement local lockdowns were made under the urgent procedure without any prior scrutiny.
47.In oral evidence Minister Edward Argar MP acknowledged that “when legislation goes through the proper parliamentary scrutiny, it is improved and is more likely to gain consent and compliance.”50
48.The Committee is concerned by both the scale of legislation and the inability of Parliamentarians to effectively amend COVID-19 legislation. The scale of legislation, covering a large number of statutory instruments made under multiple sources, makes it very difficult for even experts to follow what legislation is in effect. Even more concerning is the fact that Members have no mechanism to amend this legislation which is being made under statutory instrument. All stages of the Bill were taken through the House of Commons in one sitting day. This means Members had just one sitting day to fully influence and amend the Coronavirus Act. Members have no power to amend statutory instruments made under that Act. As we detail below, Members have had no opportunity to meaningfully engage with and amend the lockdown regulations under the Public Health (Control of Diseases) Act 1984.
49.The current system of Parliamentary scrutiny in relation to lockdown regulations is not satisfactory. The fact that this legislation, which contains stark restrictions on people’s civil liberties, is not amendable by Members, made under the urgent procedure and therefore without parliamentary scrutiny or effective oversight, coupled with the extremely quick passing of the Coronavirus Act means the framework Parliamentary scrutiny of the Government’s handling of COVID-19 is inadequate.
50.Parliamentary processes and debates help to confer legitimacy upon policy changes made through emergency legislation, particularly when the legislation is so striking in its curtailment of liberties that would normally be taken for granted. Such debates also provide opportunities for parliamentarians to raise problems that exist in the legislation or guidance, be it on their own initiative or things that have been brought to their attention by constituents or by experts. The Committee recommends that the Government gives higher priority to facilitating parliamentary scrutiny of such legislation in future.
51.The use of the urgent procedure has not always been justified, particularly when the Government has announced that measures will be introduced some weeks in advance. Examples of this are provided by the regulations mandating the use of face coverings on public transport, which were announced on 4 June, introduced on 15 June but not debated until 6 July. It is unclear why the urgent procedure was necessary when the planned legislation was announced over a week before it was to come into force. It is even more unclear why debate was not possible until over a month after their announcement.
52.In the event the Government believes it is necessary for the urgent procedure to be used to make affirmative statutory instruments, it behoves it, especially with legislation as important to the national interest as lockdown measures, to schedule debates on those regulations in a much more timely fashion than it has so far in relation to COVID-19.
53.The Government has made a welcome step towards improving the transparency of local lockdown regulations by publishing a framework containing draft options for local and regional lockdowns going forward.51 This framework contains explanatory notes on the sorts of restrictions that may be introduced in the future as well as draft regulations.
54.The Committee strongly welcomes the Government’s publication of draft legislation for implementing future local lockdowns similar to those in Greater Manchester or Leicester. This is a welcome improvement in transparency and facilitates parliamentary scrutiny of measures that may need to be introduced urgently in future. At a time when Government resources are understandably stretched, it is potentially beneficial for the Government to partially “outsource” some of the work on such legislation by publishing that legislation in draft. The Government should seek to increase awareness of the existence of this draft legislation among parliamentarians, experts and other interested parties so that as wide a group as possible are able to provide feedback on the draft regulations.
The framework of Parliamentary scrutiny under the Act
55.The following table summarises the main forms of Parliamentary scrutiny under the Coronavirus Act 2020.
Table 2: Parliamentary scrutiny under the Coronavirus Act
|
Legislation |
Timing |
Requirement |
|
Every 2 months (beginning from the date the Act was passed). |
The Secretary of State must prepare and publish a report on the status of non-devolved provisions in Part 1 of the Act, which is laid before Parliament. The report must include a statement that the Secretary of State is satisfied that that status of those provisions is appropriate. |
|
|
Every 6 months (beginning from the date the Act was passed) |
A Minister of the Crown must, as so far as is practical, make arrangements for a debate in the House of Commons on a motion within 7 sitting days of the expiry of a 6-month period. The motion is “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.”52 If the motion is negatived, a Minister of the Crown must, under exercise their power under 90(1) to end the relevant temporary provisions not later than 21 days after the rejection took place. |
|
|
Within the period of 14 Commons sitting days beginning with the day after the end of the sixth reporting period. |
A Minister of the Crown must move a motion in neutral terms to the effect that the House has considered the one-year status report. This must be done in both Houses. |
56.Witnesses to our inquiry generally did not believe that the framework for Parliamentary scrutiny was sufficiently strong. The Institute for Government described the framework as being “insufficient” for effective scrutiny alone.53 Big Brother Watch described the Act as containing some of the most “draconian powers ever seen in peacetime Britain” and recommended that the powers exercised under the Coronavirus Act should be subject to sunsets of one month, akin to the operation of the Civil Contingencies Act.54
57.The Government argued in its written evidence that the mitigating actions (such as regular reporting and debating) struck an effective balance between allowing the Parliament to hold the Government to account and not “preventing swift and necessary action being taken to combat the pandemic and support people through it”.55
The six-monthly Parliamentary review
58.The Institute for Government said that six months “may be too long to wait for a parliamentary debate and vote” and suggested that if Parliamentarians identify problems with provisions within the Act, then “Parliament should be able to express a view on whether those provisions require amendment or expiry before the six-month mark.”56 The mental health charity Mind raised concern at the fact that the six-monthly review was a vote to accept or reject all relevant temporary measures within the Coronavirus Act and suggested this approach should be modified “so that Parliament can meaningfully scrutinise the legislation and vote to remove powers which are no longer necessary.”57
59.The six-monthly Parliamentary reviews offer an opportunity for the House to debate the relevant temporary provisions within the Coronavirus Act 2020 but they do not allow the House to individually vote on whether specific provisions should continue or be repealed. The six-month reviews, therefore, while important and helpful, should be supported by more regular thematic debates. An example of such a debate could be on social care easements within the Act. The Government should schedule thematic debates on provisions within the Coronavirus Act to provide the House with an opportunity to consider specific provision in greater detail. The motion for debate should be a substantive motion. While this motion would not be legally binding, it would allow for amendments and for the House to express a clear view.
The two-monthly reports on the status of non-devolved provisions
60.One of the main points of interest in the inquiry was the two-monthly reports required under section 97.
61.Dr Ronan Cormacain, Senior Research Fellow at the Bingham Centre for the Rule of Law, described the reports as “useful but limited”. The reports provide information on what the provisions are and whether they are in force, but no further detail. Dr Cormacain argued that the report was not too helpful due to an absence of hard quantifiable data.58
62.The Institute for Government argued that the reports should include:
- reasons and evidence for why the provisions should remain in force. The Government should not simply state whether the provisions should remain in force; and
- Basic quantitative evidence on the impact of using those provisions.
The Institute for Government added that the Government (and Parliamentary Select Committees) should seek qualitative evidence from service providers and the Third Sector on the impact of these provisions “on the ground”.59
63.Big Brother Watch argued that the two-monthly reports had a self-congratulatory tone and were concerned about the lack of “independent analysis of these measures.”60 Raphael Hogarth expressed frustration that, in some ways, the reports were not partial enough and suggested that the Government should use the two-monthly to make its case for why the measures are necessary.61
64.The two-monthly reports on the status of non-devolved provisions, published under section 97, should be an important tool for scrutiny, but as currently structured, the reports do not give enough detail to enable Parliament, experts or the public to do this. The Committee recommends that the Government includes in future reports evidence-based arguments for why the provisions continue to be necessary and quantitative evidence on the impact of using those provisions. If the Government is going to extend the relevant temporary provisions Coronavirus Act after the six-month point, it should consult briefly on what additional information to include in the two-monthly reports and strive to include this as soon as possible.
18 The Act has never been used. Its use has recently been mooted as a short-term means to address any unforeseen legislative gaps exposed on leaving the EU.
19 These included fuel protests and severe floods in 2000 and the outbreak of Foot and Mouth disease in 2001 which followed in quick succession.
20 Joint Committee on the Draft Civil Contingencies Bill Draft Civil Contingencies Bill Session 2002–03, HL Paper 184/HC 1074.
24 HC Deb 19 March 2020, C1178
25 Q215. Jacob Rees Mogg made the same point. HC Deb 19 March 2020, C1178
26 HC Deb 23 March 2020 C117 (Andrew Mitchell MP), C118 (David Davis MP])
33 Letter from the Paymaster General, 21 August 2020
42 https://www.bindmans.com/news/government-guidance-changed-to-permit-people-with-specific-health-needs-to-exercise-outside-more-than-once-a-day-and-to-travel-to-do-so-where-necessary
43 https://www.womensaid.org.uk/covid-19-resource-hub/#1588945676184–75eeccb4-b11d
45 https://www.thetimes.co.uk/article/police-fine-woman-660-for-breaching-coronavirus-lockdown-laws-at-train-station-5ftr9ql0f
46 HL Deb, 25 June, volume 804, col 393 [House of Lords]
47 Face coverings to become mandatory on public transport, Department for Transport, 4 June 2020, UK.Gov
51 Draft options for regional or local coronavirus interventions, 24 July 2020, Department of Health and Social Care, Gov.uk
52 This Act includes provisions that are “temporary” and not “temporary” for the purposes of the Act.
Published: 10 September 2020