• Accessibility
• Email alerts
• RSS feeds
• Contact us

Interim report on the Work of the Committee in Session 2019–21 Contents

---

Special concerns about SIs laid during the pandemic

Incomplete revocations

16.DHSC’s explanations of the three-Tiers regulations10 and the second national lockdown regulations11 (which included some supporting data at paragraph 7.1 of the EM) were an improvement. Each of these revoked some (but not all) of the predecessor regulations. Unfortunately, this partial approach meant that the House has debated several instruments that had already been revoked.12 Other instruments were simply left to lapse.13 While legislating at this speed and frequency is exceptional, we recommend that an evaluation of the emergency legislation should include consideration of how information about which instruments were superseded or had lapsed could have been provided more effectively.

Inconsistent sunset provisions

17.Earlier in the year, we noted that some regulations were being laid because sunset provision in previous regulations had lapsed without being noticed.14 Prompted by this, and being aware that coronavirus SIs contained a variety of different sunset provisions — some lapsing after six or eight months, some linked to the Coronavirus Act 2020 so that they would lapse when the pandemic was declared to be over, and others simply left open-ended — we wrote to the Lord President and Leader of the House of Commons, the Rt Hon Jacob Rees-Mogg MP, asking where and how the sunset provision in coronavirus instruments was being monitored.15 Mr Rees-Mogg’s response included an initial list with instruments’ expiry dates by Department and, since then, we have been publishing monthly updates to it in our reports. We believe that this information is of interest to the House and the public more widely. In circumstances such as these, we recommend that the Government should publish a “dashboard” webpage which clearly shows which instruments are still in effect and those for which the sunset provision has expired.

The pandemic as a pretext for significant policy changes

18.We have been particularly vigilant about the inclusion of permanent policy changes in instruments intended to address the immediate and temporary crisis of the pandemic. Many permanent changes have been unexceptional — for example, allowing documents to be sent to an authority by email — but others have given us cause for concern. For example, although only a pilot scheme at this stage, we questioned the use of the pandemic as a rationale for the legislation to accelerate and expand the introduction of electric scooters.16

19.Of greater concern was MHCLG laying several SIs to make substantial and wide-ranging changes to planning legislation, including the creation of new rights to extend existing buildings and a new planning category to enable a wider range of uses for existing buildings.17 While we noted in our report that the intention was to support the post-pandemic economic recovery, we raised the question whether it would have been more appropriate to have made these changes in a future Planning Bill, thereby enabling Parliament to scrutinise them more fully. Using secondary legislation to make significant policy change that would be more appropriate for inclusion in a Bill does not promote effective scrutiny or good governance.

Blurring of legislation and guidance

20.Quite early on in the pandemic, we drew to the attention of the House the need for a clear distinction between legislation and guidance. 18 For example, guidance for the first lockdown said that “only one form of exercise a day” was allowed, whereas the legislation did not limit it in this way. In our 13th Report, we published an exchange of correspondence with the Secretary of State for Health and Social Care, the Rt Hon. Matt Hancock MP, who confirmed that it was the instrument and not the guidance which was legally enforceable.

21.We remain concerned that the distinction between legislation and guidance continues to be unclear. In our 35th Report, on an exemption to the travel restrictions to allow foreign poultry workers into the country,19 we noted that guidance said that the employer should provide a translation of the local lockdown restrictions and the worker should sign to say that he or she had understood them.20 This provision was not included in the regulations.

Inadequate impact assessment

22.The absence of Impact Assessments for COVID-19 instruments has been another cause for concern. Many EMs have included the standard phrase “because the instrument will cease to have effect after less than 12 months, a Regulatory Impact Assessment is not required and would be disproportionate”. We have recently seen a number of these short-term measures being extended for a further six or eight months to cope with the second wave of the pandemic,21 but still without either an Impact Assessment or data on the legislation’s performance in the first six months. We are aware that many of these costs are necessary to save lives but even a basic analysis of the impact or some financial information might help the House to weigh up conflicting priorities, such as public health versus the costs to industry.

23.While we welcome the Government’s analysis of the health, economic and social effects of COVID-19 published at the end of November to support their latest approach to tiering,22 it is very broad brush.23 For each instrument, we believe that Departments should provide a specific explanation of how it will fit within that overarching assessment. How, for example, will allowing travellers from Mongolia or Kiribati to avoid self-isolation improve the economic recovery of the travel industry? Even basic information, such as the number of passengers arriving from those countries in a normal year, would better inform the House as to the impact of the legislation.

Restricting parliamentary scrutiny

24.We have been monitoring the speed with which instruments have come into effect during the pandemic. Of 261 instruments (affirmative and negative instruments) with ‘Coronavirus’ in the title:

• 72 (27.6%) were made affirmatives of which 35 came into effect before being laid;
• 152 (58.4%) came fully into effect, and 12 (5%) partially into effect, within 48 hours of laying.

25.We understand that, in a public health crisis, urgent action may be required. In some cases, however, it has not been clear to us why an instrument had to come into effect so quickly, thereby denying Parliament an opportunity to debate the instrument before it came into force. We question why, for example, instruments relating to the sale of fresh Christmas trees24 or allowing foreign poultry workers into the country25 needed to take effect within 24 hours. Parliamentary scrutiny is an important constitutional check on the use of executive power and should not be curtailed for anything but genuine emergencies.

26.In our 19th Report,26 we raised our concern that a number of COVID-19 instruments gave a power to the relevant minister to turn the pandemic requirements on or off. While this was pragmatic it was not transparent, particularly as the EM often simply said that the decision would be published on the Covid.gov.uk webpage which rapidly became very large indeed. We suggested that, in such cases, the EM should include specific information about how and where the outcome of any ministerial review was to be promulgated and how Parliament was to be kept informed. We welcome the fact that Departments have generally done this. However, the correct balance between giving ministers the flexibility to act quickly and the need to keep Parliament informed should be examined in the evaluation of the emergency legislation.

27.Another issue raised in our 19th Report was concern about the length of time between Government announcements and relevant legislation being laid.27 This point has been mentioned several times in debates in the House of Lords. For example, in July, Baroness Thornton moved the following motion:

“ … to move that this House welcomes the introduction of the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (SI 2020/791), but regrets the delay in bringing forward the Regulations as Her Majesty’s Government has advised the public to wear face coverings in enclosed public spaces since 11 May, announced that face coverings would be mandatory in shops from 24 July on 14 July, and laid these Regulations under the made affirmative procedure on 23 July; further regrets that this delay has caused confusion over where people will have to wear face coverings due to the absence of detailed legal requirements being available in advance; and notes the concerns of the Secondary Legislation Scrutiny Committee in its 19th Report, published on 25 June, which urged Her Majesty’s Government “to ensure that the legislation follows on more closely from any announcement that they have made”.”

28.The same point has been raised in the House of Commons.28 The legislation governing the second national lockdown expired on 2 December. It was followed by a new Tiers system, which was announced ten days before, and the BBC website provided a facility allowing people to check by postcode which Tier they would be in a week later, but the regulations were not laid until less than 36 hours before they were to come into effect. We agree that the public need to be informed promptly, but Parliament needs to know first.

---

• A-Z index
• Glossary
• Contact us
• Freedom of Information
• Jobs
• Using this website
• Copyright