The Government’s response to COVID-19: human rights implications Contents

10Accountability and scrutiny

217.The CA 2020 and secondary legislation relevant to the Government’s response to Coronavirus have had a far-reaching impact on our human rights yet have been subject to minimal debate and scrutiny by Parliament before coming into force.

The Coronavirus Act 2020

218.The CA 2020 was fast-tracked through both Houses of Parliament. It was introduced in the House of Commons on 19 March 2020 and received Royal Assent less than a week later, on 25 March. It was debated for a single day in the House of Commons.

219.The importance of parliamentary scrutiny of the provisions was made evident by the concession the Government gave to introduce the 6-month review period in response to pressure from parliamentarians, including this committee. Section 98 of the Act requires the House of Commons to agree the motion that “That the temporary provisions of the Coronavirus Act 2020 should not yet expire” every six months after the Act was passed. It is not possible for individual provisions within the Act to be amended or struck out under this process. JUSTICE told us they were not convinced that this was “sufficient”: “There is a risk that this form of review would lead to rubber stamping of the legislation in its entirety, if it is thought that there is continuing necessity for any amongst the emergency powers”.263

220.Along with the 6-month review, the 2020 Act includes a so-called “sunset clause” of 2 years when provisions will automatically lapse. However, the Government may by regulation suspend (and revive) the operation of any provision of the Act,264 or, by Regulations, shorten or extend (by up to 6 months at a time) the expiry date of provisions of the Act if necessary.265

221.Unusually, Ministers can use either the draft affirmative or the made affirmative to extend the CA 2020 provisions (including statutory provisions) beyond the point at which they would otherwise expire. Section 93(5) of the CA 2020 provides that changes to lengthen the application of a provision of the Act can be made using the “made affirmative” procedure for statutory instruments. Under the ‘made affirmative’ procedure, a statutory instrument becomes law when it is first made, but lapses if it is not approved by Parliament within a set time limit. Section 93(6) of the Act, however, also provides that the regular affirmative procedure, whereby parliamentary approval is required before the instrument becomes law, can be used. We expect any extension to the expiry date of the Coronavirus Act provisions to be subject to parliamentary debate and approval before, not after, any extension comes into effect. The made affirmative should be avoided for such purposes.

222.The important safeguards about review and sunsetting in the CA 2020, do not apply to many of the most significant interferences with human rights, such as the lockdown measures. Similarly, the safeguards in the Civil Contingencies Act 2004 are not applicable. This is because rather than using the 2020 Act (including the opportunity to take time-limited and constrained powers under it) the Government has relied on the 1984 Public Health (Control of Disease) Act. It is unfortunate that the Government has chosen not to use the powers within the Civil Contingencies Act 2004 or the Coronavirus Act 2020 to legislate. These pieces of legislation were designed to be used in emergencies, and contain specific safeguards to ensure that while the Government can act, its actions are subject to Parliamentary monitoring and approval. These safeguards, along with the opportunity for proper parliamentary scrutiny, are particularly important when human rights are engaged on such a massive scale. The Government must explain why it used the 1984 Act power for legislating rather than the Coronavirus Act 2020 or the Civil Contingencies Act 2004 with all the safeguards that these measures contain.

Use of statutory instruments

223.As we have said, the detailed law dealing with the pandemic is set out in delegated legislation, in this case regulations. The way in which Ministers can make delegated legislation is set out in the relevant act. Broadly speaking, regulations can either be laid before Parliament in draft, and take effect only on approval (“draft affirmative”), or be made by the Minister and be subject to either subsequent approval by Parliament (“made affirmative”) or continue in force unless Parliament votes against them (“negative”). Delegated legislation need not come into effect immediately after it is made, and indeed there is a convention (“the 21 day rule”) that negative procedure statutory instruments should not normally come into force for 21 days after they have been laid before Parliament. This both allows scrutiny, and gives those affected time to prepare.266

224.Given the context of emergency powers, most of the powers to make delegated legislation in the relevant acts are under the made affirmative or the negative procedure. On 28 July 2020 the Hansard Society noted that of the 158 Coronavirus-related statutory instruments laid before Parliament to date, 130 were subject to what it termed the ‘made negative’ procedure and 21 were subject to the ‘made affirmative’ procedure.267 In our view, Ministers need to exercise the powers they are given in a way which allows the highest level of control and scrutiny possible. For example, they should only breach the 21-day rule when it is necessary to do so.

225.Yet the according to the Hansard Society, 97 of the 130 coronavirus related statutory instruments laid before Parliament breached the 21-day convention. For example, the Explanatory Notes to the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 explained that waiting 21 days would have imposed “extraordinary pressure” on local authorities, providers and services and that it was not possible to produce the instruments any sooner.268 However, not all witnesses agreed with this analysis. The charity, Mind, noted in their evidence to this inquiry that “These changes and more were introduced overnight via statutory instrument, posing a real risk to the rights of children in care and a threat to their wellbeing.”269 The National Youth Advocacy Service noted that the decision to by-pass the 21 day waiting period was taken even though “these changes affect the rights and entitlements of over 78,000 vulnerable children”.270

226.The decision to make face coverings compulsory in shops in England was first announced by the Government on 13 July. A statement to Parliament was made by the Secretary of State for Health and Social Care the next day. The Regulations were made and then laid on 23 July. This was the day after the House of Commons rose for summer recess.271 They came into force the following day. The Regulations need to be approved within 28 sitting days or else they cease to have effect at the end of that period. However, as the instruments were not laid until the start of recess the clock did not start on those 28 days until 1 September. The Regulations themselves, however, are temporary and are due to expire 12 months after they came into force.

227.Even more concerning is the amount of legislation coming into force before it has even been laid before Parliament, which is now high in volume and becoming routine. The Government has had to write to the Speaker at least twenty-five times since March to explain why legislation has come into force before it has been laid before Parliament. The increased use of such an approach creates risks for the rule of law and the separation of powers.

228.The use of emergency procedures for passing laws should be exceptional, limited to situations where the nature of the emergency itself requires the use of emergency procedures, and should require explicit justification, especially when human rights are at stake. The Government must consider whether a better balance could be struck between the flexibility of urgent legislation and the need for scrutiny by Parliament when legislating to respond to a public health crisis such as this.

Statements to Parliament

229.The Prime Minister announced the changes to the lockdown regulations on a Sunday evening to the press and public before making the announcement to Parliament. Sir Lindsay Hoyle, the Speaker of the House of Commons, has said, “major government announcements should be made first in the House and this is more important than ever during this time of crisis”. This reflects the requirement set out in the Ministerial Code that “When Parliament is in session, the most important announcements of Government policy should be made in the first instance, in Parliament”.272 As Tom Hickman Q.C. has observed, the Government’s use of press conferences to make major announcements would seem to be contrary to the Code.273

230.Good scrutiny ensures good government, and good scrutiny requires information to be made available to Parliament in sufficient time for questions to be asked and Ministers to be held to account. Major announcements should be made to Parliament rather than through news channels or other press briefings, especially when human rights of so many are to be engaged in so many ways.

263 JUSTICE (COV0008)

264 See Coronavirus Act 2020, Section 88

265 See s. 90(1) Coronavirus Act in respect of Regulations to shorten the application of a provision of the Coronavirus Act. Such Regulations are subject to the affirmative procedure (see s. 93(1) CA). See s. 90(2) CA in respect of Regulations to lengthen (by a maximum of 6 months at a time) the application of a provision of the Coronavirus Act. Such Regulations are subject to the made affirmative procedure (see s. 93(6) CA) but may also be made under the regular affirmative procedure (see s. 93(5) CA). The Government may also, by Regulations, make transitional or savings provisions which could have the effect of prolonging the impact of a provision of the Act under Section 89 (3)

266 Erskine May 25th edition, 31.16; Statutory Instrument Practice, para 2.11.4

267 Hansard Society, Coronavirus Statutory Instruments Dashboard, updated 18 August 2020

268 Explanatory Memorandum (Supplementary) to the Adoption and Children (Coronavirus) (Amendment) Regulations 2020, No. 445

269 Mind (COV0227)

270 NYAS (National Youth Advocacy Service) (COV0149)

271 The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (SI 2020/791)

272 Cabinet Office, Ministerial Code, August 2019, para 9.1

273 UK Constitution Law Association, Tom Hickman: A very English lockdown relaxation, 14 May 2020

Published: 21 September 2020