Covid-19 and the Use and Scrutiny of Emergency Powers (Constitution Committee Report)
(2 years, 6 months ago)
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Baroness Drake
That the Grand Committee takes note of the Report from the Constitution Committee COVID-19 and the use and scrutiny of emergency powers (3rd Report, Session 2021-22, HL Paper 15).
Baroness Drake (Lab)
My Lords, in June 2021, the Constitution Committee published its report COVID-19 and the Use and Scrutiny of Emergency Powers, following a broader inquiry into the constitutional implications of Covid-19 chaired by my esteemed noble friend Lady Taylor of Bolton. The social, economic and health implications of the pandemic were profound, the constitutional impact significant. The committee examined the emergency powers sought by the Government, and the extent to which they were used and how. We wanted to determine if there were lessons to be learned for future uses of the emergency powers, their safeguards and the processes for scrutinising them. We addressed four main dimensions: the legislative approach taken and parliamentary scrutiny afforded; co-ordination between the UK Government and the devolved Administrations; the impact of rapid changes to the law on the public and public authorities; and lessons learned. Inevitably, for any Government, national responses to such a fast-moving crisis can sometimes be sub-optimal. However, any Government must be open to learning lessons to inform future contingency planning. Witnesses told us that much could be done differently the next time.
I turn to the legislative approach taken and parliamentary scrutiny. The pandemic unquestionably necessitated a swift response from the Government. Two Acts of Parliament were used by the Government to make regulations: the Public Health (Control of Disease) Act 1984, and the Coronavirus Act 2020. However, scrutiny by Parliament was significantly restricted due to the procedures in the 1984 and 2020 Acts and Covid-driven changes to parliamentary proceedings. A large volume of new legislation came into effect as secondary legislation, much through public health regulations placing unprecedented restrictions on ordinary activities and freedoms, often without parliamentary approval. Of the 425 Covid regulations by the end of the 2019-21 Session, 398 were subject to the “made negative” or “made affirmative” procedures, and 86 were made using the urgency procedures under the 1984 Act. Regulations under the 2020 Act were more targeted on matters such as business tenancy forfeiture and local government elections.
The Government relied on the powers in the 1984 Act, rather than the Civil Contingencies Act 2004, and rather than incorporating a Covid-specific lockdown power in the Coronavirus Act 2020. Either of these latter two options could have resulted in greater parliamentary scrutiny and legal clarity. As a committee, we took the view that, if the use of the Civil Contingencies Act was not considered practically desirable, the Government should have voluntarily subjected themselves to comparable parliamentary scrutiny safeguards in pandemic-related legislation. We recommended that Parliament be consulted on any future draft legislation prepared on a contingency basis to address a potential emergency, ensuring that it provides for sufficient parliamentary scrutiny.
I turn to co-ordination between the UK Government and the devolved Administrations. Joint action was necessary to respond to a UK-wide crisis. The Coronavirus Act 2020 was the product of collaboration, passed with the consent of all three devolved legislatures. In the early stages, the First Ministers of Scotland and Wales and the First Minister and Deputy First Minister of Northern Ireland were invited to attend COBRA meetings. Ministers from the devolved Administrations attended meetings of five new ministerial implementation groups—MIGs—that looked at aspects of the coronavirus response. The different Administrations’ Chief Medical Officers and Chief Scientific Advisers met regularly, sharing information. The chairs of the Scottish and Welsh advisory groups on SAGE outputs were also participants in SAGE.
As the UK moved out of the first lockdown, however, although co-ordination on some devolved areas continued, such as scientific advice, procuring equipment and virus testing, intergovernmental co-operation appeared to decrease significantly. Each Administration started to take independent decisions about lockdown restrictions. On 10 May 2020, the Prime Minister announced the change from “stay at home” to “stay alert” but did not make clear that it applied to England only. This change was apparently made without informing the devolved Administrations. The UK Government set out three phases for easing lockdown restrictions in England. The Northern Ireland Executive set five, the Scottish Government four, and the Welsh Government opted for a traffic light system.
By early June 2020, both COBRA and the MIGs ceased to meet, replaced by two new Cabinet committees. Neither included representatives from the devolved Administrations. Yet the Cabinet Manual makes it clear that this is permitted on an exceptional basis to deal with an emergency response. Differences arose between parts of the UK on the countries exempt from quarantine restrictions and the international travel restrictions. This strained intergovernmental co-operation contributed to a lack of clarity about what rules applied where, causing difficulties for enforcement and compliance.
There is much to learn from the pandemic period to inform improving intergovernmental working. The Secretary of State, Michael Gove, recognised this when he
“described the pandemic as ‘a learning process for everyone’, raising broader questions about ‘making sure the whole devolution settlement works’. He said the UK Government intended to address this through reforms to intergovernmental mechanisms”.
Can I ask the Minister what consideration has been given to how the new intergovernmental relations arrangements could be deployed in the event of another national emergency similar to that created by the pandemic?
Turning to the impact of rapid changes to the law, the Constitution Committee noted that legal changes introduced were often set in guidance, or announced during media conferences, before Parliament had an opportunity to scrutinise them. The law was sometimes misrepresented in these public-facing forums, leading to a lack of clarity about what was legally enforceable. This posed challenges for the police and local government, sometimes leading to wrongful criminal charges. Guidance and media statements, when used appropriately, can enhance access to the law by simplifying legal complexity in a format that is easy to digest, but the committee found that, throughout the pandemic, government guidance and ministerial statements failed to set out the law clearly, mis-stated the law, or laid claim to legal requirements that did not exist.
Sometimes, public health advice was incorrectly enforced by the police as though it were law, and public authorities incorrectly suggested that guidance had the force of law. The report contains the detail of our findings but, as an example, on 23 March 2020, the Prime Minister announced the first England-wide lockdown in a televised address. The following day, the then Secretary of State for Health stated:
“These measures are not advice; they are rules. They will be enforced, including by the police”.—[Official Report, Commons, 24/3/20; col. 241.]
The announcement caused confusion about their meaning, with one police force threatening to search individual shopping baskets in supermarkets to check for non-essential items.
The UK Government’s website included the headline rules:
“Stay at home. Only go outside for food, health reasons, or work (but only if you cannot work from home). If you go out, stay 2 metres … away from other people at all times. Wash your hands as soon as you get home.”
The first instruction was a simplified explanation of a legal obligation. The second and third instructions were public health advice. The chair of the National Police Chiefs’ Council later had to clarify that the two-metre rule was not a legal requirement enforceable by police. The Secondary Legislation Scrutiny Committee also expressed concern that the distinction between legislation and guidance had been unclear, citing further examples.
New strains of the virus and spikes in infections made urgent legislative changes necessary, but sometimes seemingly non-urgent measures were introduced at short notice. In other cases, the urgency appears to have resulted from a lack of preparedness. The repeated repeal and amendment of Covid regulations added to confusion as to what restrictions applied at any one time. For example, on 2 and 3 September 2020 the “protected area” covered by the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations were amended twice in 12 hours. The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 were amended by three different statutory instruments made on 22 and 23 September 2020. The “all tiers” regulations were amended by eight further statutory instruments between December 2020 and March 2021.
In summary, legal uncertainty, short notice of new measures, and repeated amendment and revocation of secondary legislation combined in certain instances to undermine parliamentary scrutiny and made it difficult for public authorities tasked with enforcement to understand the law. Her Majesty’s Inspectorate of Constabulary reported:
“At times, the introduction of, and variation to, new legislation and guidance affected the police service’s ability to produce guidance and to brief staff. This inevitably led to some errors or inconsistencies in approach.”
The Secondary Legislation Scrutiny Committee recommended that an evaluation of how information about which instruments were superseded or had lapsed could have been provided more effectively. In our report, we strongly recommended that government information
“during a public health emergency conform to”
certain
“essential conditions to enable people … to understand the law”,
one such being
“A consistent approach to use of the terms ‘advice’, ‘guidance’, ‘recommendation’, ‘rules’ and ‘restrictions’”,
because those descriptions clearly did not have the clarity that people needed, and that in enacting any further restrictions,
“the Government should be guided by the principles of certainty, clarity and transparency”.
Finally, as to lessons learned, the Government used a wide range of emergency measures to respond to the pandemic, many introducing significant curbs on civil liberties and businesses. Scrutiny of these regulations by Parliament was significantly restricted. The chair of the public inquiry into the handling of Covid says that public hearings are unlikely to begin before 2023. Can the Minister give an indication of how long the inquiry will take? We recommended a review of the use of emergency powers by the Government, and their scrutiny by Parliament. It should take place in advance of the public inquiry, not after, so that the review can inform both the public inquiry and the planning for future emergencies. Can the Minister tell us the Government’s position on this recommendation from the committee?
It is unquestionable that the Government faced an enormous challenge with Covid-19, and the first responsibility of any Government is to protect their citizens. However, I refer to a conclusion that we made:
“All governments should recognise that, however great or sudden an emergency … powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence.”
That conclusion is probably still valid while we wait to see the outcome of the various reviews that the Government are engaged in. I look forward to the Minister’s response.
Baroness Foster of Oxton (Con)
My Lords, the use of emergency powers is defined in the report as follows:
“Emergency legislation may be necessary in exceptional circumstances, but its use should be limited given its significant constitutional consequences.”
In addition:
“All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence … . The vast majority of these regulations became law before being laid before Parliament; in other words, before members of either House”
had the chance to see them. The question is: did this need to be the case, notwithstanding the urgency with which we were required to act?
What is clear is that we can never implement emergency powers in such a cavalier fashion in future. The consequences of lockdowns on health, both physical and mental, and on so many vulnerable adults and children were appalling. Despite many scientists being aware of the effects that would take place, they said nothing. This led to millions of people waiting for treatment, some dying prematurely through lack of referral. Even now, all this time later, we are left with accident and emergency clogged up trying to sort out the mess.
The financial cost to the economy of three lockdowns was £370 billion, with many small and medium-sized businesses going bankrupt and many in the private sector losing their jobs. Thankfully, many have managed to find jobs—which will not do them much good today, if we look at the appalling actions taking place across the country.
Although I criticise my own Government, which of course I can do, while acknowledging the challenges of the decisions they had to make, I would certainly not allow the opposition parties off the hook, because too often, as far as I am concerned, this situation was turned into a political football. If it had been left to many of them, I suspect we would still be in lockdown.
My second point is on school closures. This was never necessary. Sweden and many other countries kept children in school not only for academic purposes but because it meant that their parents could carry on working to prevent the economy closing down. The huge issue of safeguarding was paramount but many children fell through the net, as we have seen from so many recent horror stories concerning child abuse and even murder. We can never allow a situation like that to happen again, where, in fact, many of the trade unions decided who could attend school and who could not.
Finally, there is much in this report to welcome. I hope that one of the most critical lessons will be regarding scrutiny, which has been raised, and making sure that Parliament can properly scrutinise measures and ensure legal clarity where necessary. The blur between guidelines and legally enforceable procedures and requirements left many police forces not even understanding the difference.
I hope nothing like this will happen again in our lifetimes, but if it does we need to have an open and frank debate. We must always be the order of the day, and I hope that, for once, lessons will be learned so that we can deal with future emergencies in a much more grown-up and responsible way, with all countries across the United Kingdom adhering to one set of regulations, while avoiding some of the knee-jerk fear- mongering by too many in the media and in medicine who did nothing to calm a most difficult situation. I hope I never witness anything like that again.
Baroness Bryan of Partick (Lab)
My Lords, I thank the Select Committee for another excellent report. While it is a shame that it has taken so long for it to be considered, many of the issues raised remain very relevant and have constitutional implications that are very much alive and unresolved.
The report rightly identifies that, by its very nature, a global pandemic cannot be contained within borders; there had to be joint action and intergovernmental collaboration. But the report quite rightly states, in paragraph 92:
“A core principle underpinning the UK’s devolution arrangements is the respect that the UK Government and the devolved administrations must show for each other’s areas of competence.”
It notes that communication and co-ordination had been “close and effective”, while at other times that had been “less evident”.
One important lesson is that during the time when the First Ministers participated in COBRA there appeared to be successful co-ordination. What made this effective was a commitment to a shared approach and shared decision-making. Once this broke down, the result was confusion and a lack of trust. We have to ask why, at this point, a joint ministerial committee was not tasked with continuing the collaboration.
The House of Commons Scottish Affairs Committee recommended that there be regular intergovernmental meetings, but this was not accepted by government. With hindsight, this was a missed opportunity that could have built bridges between those making decisions —rather than barriers, which broke down co-operation.
Living in Scotland, I was aware of the confusion among businesses and individuals as to which rules covered the whole UK, which were Scottish regulations and which applied only to one local authority area. The First Minister of Wales, Mark Drakeford, called the situation “utterly shambolic”. It was particularly difficult for people living and working across borders.
I believe the main reason for confusion is the asymmetry of the UK. When the Prime Minister speaks on national television, is he speaking as the Prime Minister of the UK or as the equivalent of the First Minister of England? He does not generally make that distinction, so it is not surprising that others, including the London-based media, do not acknowledge it either.
During 2021 we saw tensions between the devolved Governments and the UK Government, but also between English regions and the Government. Central government imposed different regulations on different regions at different times. Because of the varying devolution deals, this resulted in different levels of support and compensation. It has been suggested that this has raised interest in and support for more regional devolution. Andy Burnham, the Mayor of Greater Manchester, has argued that all parts of the north need substantial regional devolution. He suggests that the House of Lords needs to be an elected senate of the nations and regions.
The committee’s recommendations have been enhanced by its more recent report, Respect and Co-operation: Building a Stronger Union for the 21st Century. I very much look forward to being able to discuss that report—I hope without such a long wait. We have yet to see whether the new structures for intergovernmental relations will contribute to more effective systems of collaboration.
I am sorry that the Government’s response to the report did not cover the sections on co-ordination across the UK, including relations between central and local government. The worry is that, unless there is an acknowledgement that each part of the governance of the UK should be treated with esteem and not simply be subjected to the vagaries of central government, the tensions that occurred in response to Covid will happen again and contribute to the growing lack of trust.
Can the Minister give any explanation as to why there was no response to the concerns raised in recommendations 16 to 20? Could he also say what lessons have been learned from the way in which decisions were taken during this period? Finally, will he share his thoughts on the views expressed by Andy Burnham about regional devolution and a second Chamber of the nations and regions?
Lord Hope of Craighead (CB)
My Lords, I am the other Member of this Committee who was a member of the committee whose report we are considering. I thank the noble Baroness, Lady Drake, for the careful way in which she introduced our report and highlighted the particular matters on which the Minister is being asked to reply.
For myself, I begin by referring to the Government’s response, which I have read with great care and much of which I found reassuring, but two or three points arise out of it that I might mention briefly. The first arises out the paragraph where reference is made to our recommendation 6 that, among other things:
“The pre-legislative scrutiny of what became the Civil Contingencies Act 2004 provides a clear model”
for the approach to pre-legislative scrutiny. I am not sure that the response really picks up the point we were trying to make. It refers to “changes” to the Civil Contingencies Act, but it does not recognise that the way that Act was dealt with was a model. It also raises a question, on which the Minister might feel able to reply, as to whether it is proposed that changes should be made to that Act in the light of the experience of the Covid crisis. That might be desirable, but it would be interesting to know whether changes are in prospect.
The other paragraph that is worth mentioning is on our recommendation 38. It does not quite pick up the point we sought to make. Our recommendation was that
“all future ministerial statements and Government guidance on changes to … restrictions clearly state the geographic extent of the new requirements.”
The response deals with the Covid-19 guidance but does not mention ministerial statements. It is right to say that the guidance, on the whole, was clear—it was written down and made it clear to which part of the UK it referred—but the ministerial statements from time to time did not make it clear that they referred only to England and Wales. That is a matter of concern for the reasons already mentioned by the noble Baroness, Lady Bryan of Partick. Those are the only two points in the response, apart from the third point, that might require further comment.
The third point is the one that the noble Baroness, Lady Bryan of Partick, mentioned, which is that there is no mention in the response of chapter 3 of the report. It is that chapter on which I wish to concentrate, for that reason among others. The chapter was of particular interest to me because, like her, I spent the period when we were in lockdown at home in Scotland. That meant that, especially during the early days, when we sought information about what was going on and what we should do, I found myself trying to obtain it from two sources.
First, there were daily briefings from Downing Street, usually at about 5 pm, which were initially presented by the Prime Minister and, later and more frequently, by the Secretary of State Mr Hancock, against a backdrop of union flags. As has already been mentioned, that tended to suggest that what was being said there applied to the union as a whole. But we also had briefings from St Andrew’s House in Edinburgh, which appeared on BBC Scotland, usually just after midday, and were invariably conducted by Nicola Sturgeon, the First Minister. I believe that similar briefings were being presented from Cardiff by the First Minister for Wales, Mark Drakeford, and from Northern Ireland by the appropriate Minister. In their case, if there were flags, they were appropriate to the parts of the UK to which they related.
There is a question there about whether it is right that, where statements are being made that apply to England and Wales only, they should be set against a background of the union flag without making it absolutely clear that they apply to England and Wales only. Not to do so is the product of confusion.
I take these briefings as a starting point because they were a powerful demonstration—as we say in our report, “unprecedented” in its intensity—of devolution in action. In paragraph 85 we refer to “particularly visible” devolution arrangements in Scotland, and in paragraph 115 to a “dramatic increase in awareness”. As we know, health and education are devolved in Scotland, as they are in Wales and Northern Ireland, so here was the First Minister in each case fulfilling their constitutional roles when they were telling those in those parts of the United Kingdom how they should react to the emergency.
It was clear to us in the evidence we received that the level of co-ordination was good to begin with. There were cases when we really understood that what was being said applied to both nations and that there had been proper discussions between the relevant Ministers and their advisers. The messages from both were consistent with each other: you must stay at home, we were told. That message applied across the United Kingdom, and rightly so, and was promulgated on road signs and so on.
However, as our report points out, there came a later stage, as we began to relax from the lockdown, when different guidance and rules were promulgated north and south of the border. This was because the different Administrations were taking different decisions, looking at the needs and demands to protect the health service, which were different depending on which part of the UK you lived in and as to what needed to be done. We had different rules about the number of people who could gather, where they could go and so on.
In the evidence we received there is a suggestion that, in this situation, co-ordination was not as effective as it should have been. The United Kingdom took a lead in the co-ordination of vaccine development and procurement, much to its credit and to the benefit of all throughout the UK. That was a definite benefit of co-ordination when it was needed, but there seemed to be an increasing disregard, particularly in Whitehall, for the need to co-ordinate the way that restrictions were being adjusted and promulgated. Reference has already been made to the “stay at home” message being changed to “stay alert” in England and Wales, but not in the devolved Administrations; and to research by a school in Cardiff about the extent of the failure to understand the situation in Wales in the light of that change of message.
I do not want to further elaborate the point about confusion, which the noble Baronesses covered very effectively, but I ask the Minister to think about whether there is any value in reflecting on the way the devolved Administrations reacted to the situation according to their own rules and guidance. My impression is that there was less changing of the rules in Scotland than there was in England and Wales. The “rapid changes” referred to by the noble Baroness, Lady Drake, were not reflected in the way that this was handled in Scotland, so there may be lessons that could be learned from looking across the border.
There is another matter that we do not with deal in our report, but for which I can draw on my own experience: there were, and still are, problems for those who live in Scotland about obtaining proof of one’s Covid vaccination status in a form that would be acceptable outside Scotland. This is because NHS Scotland has its own system, which can be accessed by a mobile app, distinct from the system used in England. I have no doubt that they are very similar, but the fact is that they are different systems.
The result is that there have been times when people have travelled abroad, taking the Scottish app with them, only to find that it is not acceptable in France, for example, or any other place where you need to establish your status. I personally found, when I went to Italy in the recess, that the information on my NHS Scotland app was not acceptable to the airline I was using, although it was acceptable when I went to its desk. This situation is being overcome gradually, but I suggest that someone should have a look at the way these two apps failed to interact with each other so that there will be less uncertainty for people travelling abroad—particularly from the devolved Administrations —as to whether their vaccine status would be properly recognised.
Leaving these points aside, I invite the Minister to reassure us that the Government have noted carefully what we say about the practical difficulties that were created for members of the public by the divergences that emerged—occasionally accidentally—between the UK position in England and Wales and the position in the other devolved Administrations. There certainly were occasions when the need for co-operation was overlooked in Westminster when rules were being made or relaxed. I accept, and fully recognise and understand, that there were policy differences that made this difficult, especially in the later stages when it was quite clear that the Prime Minister was conspicuously keener than the other Administrations to lift restrictions to get the economy going. Nevertheless, the fact that they existed means that there were occasions when the rationale behind the differences was not apparent to members of the public.
This report and the forthcoming inquiries are all about lessons for the future. There is much else in the report that needs to be considered carefully, but there is a message here, as the noble Baroness, Lady Bryan, made clear, about devolution and the necessity of close co-operation at a ministerial level, as well as between officials. That was plain to see in the early stages, but, as I mentioned, it seemed to be increasingly absent as time went on. “Respect and co-operation” is the key message; it is the way in which we are best guided for living with devolution and maintaining the strength of the union, which is so important in the current climate. I hope that the experience of the pandemic will help to reinforce that message about co-operation and the need for it right across the board, to the benefit of everyone in all parts of the United Kingdom.
Baroness Fox of Buckley (Non-Afl)
My Lords, I congratulate the Constitution Committee on this excellent report. I certainly recommend that it is read widely in the public sphere because it is important to try to assimilate what happened and to learn lessons. However, before I recommend that it is read, I might have to issue a warning because, despite my long-standing hostility to “Generation Snowflake”-like trigger warnings, I must say that reading the report brought me out in a rash of post-traumatic stress disorder. All those bad memories that I tried to supress were brought to the fore with my horror at the ease with which civil liberties were suspended and intrusive legislation transformed the minutiae of everyday life. This was something I would rather forget, but we cannot forget it. The unprecedented attack on the freedom of ordinary activities for which, overnight, we needed permission to do anything—from walking outside to visiting loved ones in hospital or having a pint with mates—is something that we do not actually want to remember, but should never, ever forget, because we should never, ever repeat it.
The fact that public life was closed down has totally discombobulated society. The report reminded me of all those last-minute changes. I remember when the rule of six regulations were published only 30 minutes before the law came into force, making it a criminal offence to have more than six people gathering outside, because I was organising to have six people gathering outside; I was the seventh and did not know what to do. There was a sense of confusion and panic.
The report notes:
“1 in 5 … did not know what Tier their area was in”.
I never understood the tier system; I got completely confused. It says that
“only 12% knew the correct amount of time a person is required to self-isolate”
if they tested positive, and that
“53% … did not know whether they were allowed to visit other parts of the UK”.
We all felt disorientated at all these things. Family Zoom calls—maybe it was just my family—were full of angst and arguments about what we were allowed and not allowed to do. In other words, the stuffing was knocked out of spontaneous interactions and everybody became totally preoccupied with trying to decipher the runes of what we were and were not allowed to do by the law.
This might not be a constitutional matter, but it matters for the constitution. Individual agency of grown-up decision-makers, and taking responsibility, became the collateral damage of what this report describes. The confusion and conflation between guidance and law was particularly damaging, as described in the report, which says that
“‘guidance’, ‘guidelines’, ‘rules’ and ‘restrictions’”
were used
“interchangeably, in reference to … legal requirements and public health advice”.
Worse, as Kirsty Brimelow QC rightly notes, we had the added confusion of the police being equally unclear and often acting on the messaging of announcements by the Home Secretary or the Prime Minister at press conferences, rather than on the law. As for the consequences of some of this, I think this has undermined confidence in the police as an impartial, trusted body implementing the law. It has also undermined trust in the law itself if it can become such a shape-shifter, with hardly anybody knowing what it was.
I also fear that the use of the Public Health (Control of Disease) Act 1984 to push through so many of the most draconian measures has damaged the reputation of public health advice more generally. One thing the report does not note is the use of the behind-the-scenes, behind-the-backs-of-the-public devices that we use to soften up public opinion in relation to law changes. It is worth reading Laura Dodsworth’s book A State of Fear, which includes the minutes of SAGE meetings and the discussion on the use of behavioural psychology and nudging, so that the public would be faced with the worst-case scenarios and scared enough to comply with behaviour changes backed by legal force. Rushing laws through, justified by fear, obviously leads to a lack of scrutiny. It has been bad for the constitution that we have allowed fear to push through law.
Moving on, I agree with the report that the Civil Contingencies Act 2004, with its triple lock, would have been a better piece of legislation to use than the Coronavirus Act 2020, which completed its passage through both Houses of Parliament in just three sitting days. Of course, we all know and understand that these legal changes were made in the context of the very real and justified sense that this was an unprecedented health emergency at the start of 2020, but it is the job of the Government to keep society calm. Hyperactive lawmaking, hyped up by using fear, is the wrong approach.
It was not just the Government. While Parliament was complaining about not having scrutiny over the Government, many people on all sides in Parliament went along with this hyped-up, over-the-top, disproportionate fear-mongering. This in turn created a mood of permanent emergency. Even post the vaccine, the misuse of Section 45R of the Public Health (Control of Disease) Act, using the urgency clause for which there is no objective definition, created an atmosphere in which there was no constraint over what could be done. It makes me very nervous now, when I hear people declaring endless emergencies: the climate emergency, the energy emergency, the cost of living emergency. You think, “Oh my goodness; they’re going to bring in emergency legislation for all that, and we’d be locked down for that too”. Some are advocating that we do just that, so I am not exaggerating.
There is a good quote in the report from Professor Hickman:
“Once the true emergency abated … proper legislation should have been put in place. Parliament could and should have insisted on protections such as the ability to amend regulations”.
But Parliament did not, and that is what should have happened. I note that some of us, even if it was a minority, advocated such an approach at the time—not afterwards, as in the report—and were vilified for doing so. Lord Sumption spoke out very early on but was treated as a pariah. When I arrived in this place, I raised certain questions about the legislation; I did so rather anxiously as I was new and arrived here during lockdown. I was treated like a wide-eyed loony libertarian for suggesting a sunset clause in certain legislation and for querying things such as Covid passports. In the House—would you believe it?—a Minister added me and other Members of the House of Lords to a list of Covid deniers for raising this. I felt nervous raising questions or being critical—being not cynical but sceptical.
There is no mention in the report of free speech. You cannot have a constitution report without noting that, although no laws were brought in to attack free speech during this time, free speech suffered by behind-the-scenes methods. I look forward to at least having a discussion about the forthcoming Bill of Rights, which will apparently put free speech as a core societal value; we need to protect it.
This is not over yet by any stretch. I worry that the Government have got a taste for the extensive use of secondary legislation and a lack of checks on executive powers. The new Schools Bill, which I am following at the moment, has rightly been criticised as a power grab to, to quote the noble Lord, Lord Baker, increase
“the powers of the Secretary of State and the Department for Education in a way unprecedented since 1870.”—[Official Report, 23/5/22; col. 689.]
Talking of schools, it is only now that we are admitting, as the noble Baroness, Lady Foster, mentioned, the devastating impact of school closures on young people. We should never forget the human cost of these constitutional changes.
It is interesting to note that, at the moment, there is a panic about those pupils who have not returned to school. That might have something to do with the fact that they were told that school was not so important after all; we locked the gates and education became a secondary matter. Guess what the Government’s response to the increased non-attendance of children at schools is? It is to bring in illiberal legislation that threatens to fine parents. I worry that the legislative track we were on is not over yet.
I make my final point as baroness of Buckley, which is in north Wales; I could not but mention the impact of the legal divergence between the four parts of the United Kingdom. The whole constitutional decision to have legal divergence was completely unnecessary and created a fragmented mood in the country. The mood was almost competitive between the different jurisdictions. My very own north Walian leader, Mark Drakeford, wanted to prove that he was harder on lockdown than anyone else, and Nicola Sturgeon was competing with the UK Government. There were massive arguments in our family about what was an essential good or not, because we lived one mile apart on either side of the border between England and north Wales. If you went on a train, you had to dodge between having your mask on or off as you went down the track. It was ridiculous.
Legal divergence was also bad for scientific advice. If the Welsh jurisdiction said that its science showed one thing, and one mile away the science showed something else, why would any member of the public trust anything that was proved to be scientific evidence? The whole thing became, to be frank, farcical.
Tensions were exacerbated when the country faced a big challenge. Legal divergence has been hugely bad for the union in general and, as I said, was unnecessary. It would have been far better to have had a UK-wide response that we all united around.
Having said all that, I hope there is never a UK-wide response like this again, because I say: never again. This report gives us ample evidence as to why we should think that.
Lord Collins of Highbury (Lab)
My Lords, I thank the committee for its report and my noble friend for her excellent introduction. What I recall most about the pandemic—I appreciate that, because it is such a void in our lives, it is very difficult to remember what we did—was the strength of our communities. Our communities and the people within in them were so determined to support and care for each other. That is something I had not seen before in my lifetime. Perhaps Members who were alive during the war may have seen it. It was that resilience that I was most impressed by; people were determined to care for each other and those most vulnerable in our communities, and we should not forget that.
My noble friend’s introduction highlighted four key themes. The first is on why the Government chose the legislation they did, particularly the 1984 Act and the use of the Coronavirus Act 2020, rather than others that were available to them. I think we all appreciate that with fast-tracking of legislation and the extensive use of secondary legislation, essential checks on executive power are lost and the quality of law suffers. There is no doubt about that. Emergency legislation is never an acceptable alternative to effective government planning for periods of crisis.
The second theme, which all noble Lords have referred to, is to do with the fact that, although the four Administrations in the United Kingdom clearly demonstrated that they were capable of working together, the pandemic created political tensions. One example that the committee highlighted—one I was very familiar with—is how rules on face coverings on public transport in one part of the UK created difficulties when you crossed the Severn Bridge, and things like that. Clearly, that led to confusion.
The third theme is lack of clarity. There were a number of occasions when government publications and statements did not distinguish between public health advice and legal requirements. Rules were identified by the Government as having legal effect without any law having been made—for example, guidance about exercising once per day. My noble friend Lady Bryan highlighted that this confusion created strains on the relationships between the UK Government and certain local government leaders within England during the pandemic. We should not forget that there was obvious public confusion. One study, conducted when the tier regulations were in force, found that one in five did not know what tier their area was in, leading to extensive confusion.
The final theme of my noble friend’s introduction was that no Government should be frightened of learning the lessons, and I will return to that in a moment.
As the noble and learned Lord, Lord Hope, highlighted, the committee recommended that Parliament be consulted on any future draft legislation on a contingency basis to address a potential emergency. That is what we are all looking for, because it provides for the most sufficient parliamentary scrutiny.
The pre-legislative scrutiny of what became the Civil Contingencies Act provided a clear model for that. The Government’s response to the committee’s report merely stated that the Government will “endeavour to provide opportunities”. That is not a sufficiently clear commitment. I hope the Minister can reassure us that it will be more than an endeavour; it is a principle that we all want to ensure is taken on board. I hope he can be a lot clearer in his response today.
On learning the lessons, I read the Covid-19 inquiry final terms of reference, which have just been published. The Constitution Committee recommended that a review of the use of emergency powers by the Government, and the scrutiny of those powers by Parliament, should take place in advance of that inquiry, and for very good, obvious reasons. The results of that could then inform the public inquiry and any planning for future emergencies. I hope that the noble Lord can reassure us on that point and that the Government will consider committing to undertake a full-scale review of emergency powers, as recommended, in time to inform the public inquiry.
Of course, no one knows when the next pandemic or national emergency will occur. Despite what I heard from the previous speaker, I have no doubt that there will be one, and we need to be better prepared. That is one of the most important lessons that we can learn. I hope that the Government will commit to an expedited review of the CCA, because that would also allow for fuller parliamentary scrutiny.
As we have heard, the Government introduced a large volume of new legislation in response to the pandemic. Because the Government chose not to use the Civil Contingencies Act, some argue—I am inclined to that view as well—that they evaded the Act’s important constitutional safeguards and that, as a result, parliamentary oversight of significant policy decisions was limited. A Law Society Gazette article in 2020 argued that the CCA represented a legal landmark:
“It updated and consolidated laws which enabled public authorities to prepare for, and respond effectively to, emergencies”.
That is the key theme that we should focus on. How do we ensure that public bodies and people responsible for safeguarding our communities are better prepared in advance for something that we know will come to hit us again?
The first of two points in my conclusion is on the committee’s recommendation on sunset clauses. I have read the Government’s response on that. There is a strong case for ensuring that when we bring in these special powers, there is no keeping them on for longer than is necessary. I understand that the Government have been rescinding these powers as we go on, but some still remain. We need a clear commitment that in future the Government will adopt the principle of presumption in favour of sunsetting regulations. I think that will reassure us all about the taking of emergency powers.
I will conclude on the question of confusion. One of the committee’s recommendations was that the Government adopt alternative drafting practices to make the regulations more accessible to members of the public and lawyers alike. It asked that the Government should set out in the Explanatory Memorandum, first, the regulations being amended; secondly, the substance of the amendments being made; and, thirdly, the reasons for the amendments, following a practical approach that would ensure that people understood what they were about.
The Government’s response to the report did not appear to acknowledge the case for improvements in drafting the Explanatory Memorandum, so what does the Minister think will be necessary in future national emergencies to ensure less confusion among the public—and perhaps even a less confused Prime Minister? Surely improvements to the drafting of future Explanatory Memorandums will be a critical part of that.
Ultimately, we hope that the national inquiry will ensure that we all learn the lessons, but I do not want us to forget that the most important lesson for all of us is the importance of community and supporting each other.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thought that the way the noble Lord, Lord Collins, opened and closed his speech was totally appropriate. Some of the finest moments in these terrible times—which, to agree with my noble friend Lady Foster, none of us wishes to see again—involved the sense of solidarity, togetherness and defiance which is a great part of human character. All those things were there, along with the great dedication of the public servants and the responders who served in every part of these islands, whatever the nature of their Government of the time. That part of this experience was a great good, and one that we should carry with us; perhaps we forget it rather too often. I am grateful to the noble Lord for reminding us of that.
I begin by thanking the noble Baroness, Lady Drake, and the Lords Constitution Committee for the comprehensive reports—not just this one, but the three reports—published during its inquiry into the constitutional implications of Covid-19. It is absolutely right that regulations made by Governments—every Government—are thoroughly scrutinised. Such scrutiny improves the legitimacy of, and respect for, legislation in wider society. It is a fundamental part of the principles of our historic democratic polity. I acknowledge and own the duty on behalf of the Government.
Although the most recent report from your Lordships’ committee was published in June last year and responded to in writing by the Government in October—not in every respect satisfactorily, I hear; if I fail to respond satisfactorily I will take away and reflect on what I have heard in the debate—I very much welcome the report and the fact that the Committee has taken the opportunity to debate this important issue today. I am grateful to all noble Lords for their contributions. I candidly acknowledge the importance of the points made by so many in the debate.
The coronavirus pandemic had an unprecedented global impact that severely affected public health, the economy and society in sometimes devastating and disorienting ways, as the noble Baroness, Lady Fox, described. The Government, faced with an unprecedented and unknown enemy, took early and decisive action by introducing a range of measures to combat the virus, increase testing, support detection, reduce transmission and engage in research to improve our understanding of the virus.
Legislation was needed to make this work possible, and that legislation had to be addressed swiftly. When the virus started, I was not even a member of the Government; I was in retirement, living happily in Italy, rather bemusedly reading reports in the Italian newspapers of towns in the north of Italy being eccentrically cut off by the Italian Government because this virus had arrived. Some time later, I found myself being presented with comprehensive legislation to deal with a virus that, we then knew, represented a profound threat of loss of life.
Having moved from being a private citizen to being a Minister who was partly responsible, I was struck by the enormity of some of the measures put forward. My reaction was that they would be severely contested and challenged in Parliament, because of their enormity and gravity, only to find that there was swift and general agreement across the parties to take these pieces of legislation through. It is important to remember that context: legislation had to be developed very rapidly.
I will provide a brief summary of these pieces of legislation. Although they are well known to your Lordships present, they are worth placing on the record in Hansard. The Public Health (Control of Disease) Act 1984 was designed to give the Government appropriate powers in the event of a serious public health situation. These powers, set out in Part 2A of the Act, were added following the global SARS outbreak in 2008. As many noble Lords have said, this was the main legislation used to deliver the Government’s response to Covid-19. It enabled the public health response to the pandemic and the rapid implementation of restrictions, including local and national lockdowns. I will come on to the variations later. This public health Act was the legal basis for many of the measures essential to limiting social contact, including the “stay at home” order in March 2020, which has been referred to, subsequent national and local lockdowns, measures requiring face coverings and isolation, and those on international travel.
It was felt that the fast-moving, urgent and often unpredictable nature of the pandemic—that was how it was seen—necessitated the use of the emergency procedure under Section 45R of the 1984 Act in a number of instances. Regulations made using the emergency powers in Section 45R were not always debated before they came into force, but they required debate and approval within 28 days or they would lapse. Parliament specifically approved the Secretary of State’s ability to use Section 45R to cover an emergency such as the pandemic. The decision to use it was deemed necessary based on the urgency of the situation with the rapid progress of the virus at the time and the transmission risk that the statutory instrument was designed to tackle.
The “made negative” procedure, which allows a measure to become law without debate, under Section 45Q of the 1984 Act, was also used in a number of instances. For example, travel regulations made under Section 45Q were made under the negative procedure, so were not debated before they came into force. That has been the subject of complaint and comment in your Lordships’ debate and is noted in the report.
For nationally significant Covid-19 legislation made under the public health Act, including that implementing national lockdowns, the Government have sought to provide a vote in Parliament ahead of any regulations coming into force, but this was always subject to the urgency of the situation, to parliamentary timetabling and to the sitting of Parliament. Parliamentary approval is needed to approve any regulations made using the emergency procedure within 28 sitting days, otherwise they would cease to have effect. Inevitably, the fast-moving and urgent nature of the pandemic led Ministers, at the time, to use the “made affirmative” procedure in a number of instances and the “made negative” procedure for travel-related regulations.
The other instrument that is the subject of this distinguished report, the Coronavirus Act 2020, came into force on 25 March 2020—a month after I returned to join the Government—and has played a critical role in the Government’s Covid-19 response. That Act was introduced during a period of extreme uncertainty, when the future course and potential impacts of the pandemic were unknown. It was designed to be a facilitative and supportive piece of legislation, creating a framework to supplement the public health measures enacted via the public health Act.
The Coronavirus Act did not introduce lockdowns or restrictions. Some have commented that, in their belief, it might have, but it did not. It enabled action in five key areas: increasing the available health and social care workforce; easing and reacting to the burden on front-line staff; supporting people, including through setting up the Coronavirus Job Retention Scheme, which supported 11.7 million jobs, and the Self-employment Income Support Scheme, which protected the livelihoods of nearly 3 million individuals; containing and slowing the virus; and managing the deceased with respect and dignity.
Sunsetting is an interesting and important concept in legislation. The temporary provisions within the Act had a two-year lifespan from when the Act was passed by Parliament. These sunset provisions ensured that the Government had the necessary powers to respond to the pandemic for a proportionate amount of time. The Government removed powers throughout the pandemic as and when they were no longer needed. Thanks to the progress made in the fight against the virus, the Government were able to expire 20 non-devolved temporary provisions in the Act early and suspended a total of four provisions which have since expired. The majority of the remaining temporary non-devolved provisions expired at the end of 24 March 2022. The Government have extended just five temporary provisions within the Act for up to six months beyond 24 March.
I was asked about co-ordination across the United Kingdom. This was a theme of the debate; many noble Lords—the noble Baronesses, Lady Drake and Lady Bryan, the noble and learned Lord, Lord Hope of Craighead, and others—raised this question. The noble and learned Lord referred to what he thought was a failure to respond to chapter 3 of your Lordships’ report. The noble Baroness, Lady Fox, came at this from a slightly different direction from other noble Lords.
The UK Government determined the lockdown rules that applied in England, while the Scottish Government, the Welsh Government and the Northern Ireland Executive were responsible for introducing and lifting restrictions in their respective parts of the United Kingdom. This is the result of devolution arrangements that have been in place for more than 20 years. Yes, they became particularly visible during the Covid-19 pandemic, but the way to proceed in each of the jurisdictions was a matter for the Administration there.
I slightly took issue with the noble and learned Lord, Lord Hope. I understand the point he was making when he was complaining about a union flag being displayed behind the Prime Minister. The union flag is the flag of our United Kingdom. There are many people in Scotland and every part of this kingdom who have been proud to go out to serve and, indeed, shed their blood under the union flag. I do not believe that one needs to apologise for the display of that flag by the Prime Minister of the United Kingdom.
That said, the Government have been determined to work collaboratively with the devolved Governments. Working together on health and social care is ingrained in the values of our National Health Service and our social care sector, and your Lordships’ committee is right to ask and press about this. The Secretary of State for Health and Social Care continues to have regular engagement with the devolved Governments’ Health Ministers to deliver responses that benefit people across the whole of the United Kingdom.
Between March 2020 and May 2022, 65 United Kingdom Health Minister forums were held, and there was further engagement at junior ministerial level. This engagement included sharing information, resolving issues and progressing areas of mutual concern in responding to and recovering from the pandemic. Key issues of discussion in these meetings have included: vaccine development; the national testing programme, including testing resilience; social care; review of the Coronavirus Act; Covid certification; and winter planning and recovery. On Covid certification and the app, again, it is a matter for the Scottish Government if they wish to design an app. Of course one would wish that there were joined-up relations; this is what the United Kingdom wishes to see.
Ministerial engagement and intergovernmental communication are ongoing. That has been underpinned by ongoing engagement between civil servants across numerous policy areas. It has also included conversations between the Chief Medical Officers, as well as joint devolved government representation on key programme boards within the UK Health Security Agency to co-ordinate various programmes.
People ask why, therefore, there have been such different approaches to Covid across the United Kingdom. Ministers and officials from the United Kingdom Government have worked closely with the devolved Governments to ensure a co-ordinated approach to the response to Covid-19 across the United Kingdom. Although many, and perhaps even I may regret the differences in public health approaches in reflecting and responding to different local circumstances, this diversity is a strength of our devolved systems. This has always been asserted by many in your Lordships’ House and many in our nation, and has been delivered by successive Governments.
In July 2020, the United Kingdom Government reaffirmed their commitment to frequent engagement with the devolved Governments on areas of shared interest. To take up a point directly asked by the noble Baroness, Lady Drake, following the review of intergovernmental relations the Secretary of State for the Department of Health and Social Care will continue to engage regularly with counterparts through the interministerial group on health and social care. The group will continue to consider and discuss matters relating to health and adult social care policy and strategic policy developments between the portfolio Ministers leading on these issues within the United Kingdom Governments.
I was also asked about the Covid inquiry. The Government are very grateful to the noble and learned Baroness, Lady Hallett, for leading such a full and extensive consultation on her terms of reference and producing a detailed set of proposed refinements to the draft terms of reference. She has published a set of proposals. Under the Inquiries Act, the Prime Minister must also consult the devolved Administrations before finalising the inquiry’s terms of reference. That will be done and, once these steps have been taken, he will publish the final terms of reference and the formal work can begin. The Prime Minister is considering fully the noble and learned Baroness’s proposals, is consulting the devolved Administrations and will publish the terms of reference.
I was asked when the inquiry will start and finish. It would be presumptuous of a mere Minister of the Crown to dictate to the chair of such an important inquiry. It will begin its formal work once the terms of reference are finalised. From that point, the process, procedure and timing of the inquiry stages will be for the independent chair to determine. The noble and learned Baroness, Lady Hallett, has set out that her investigations will begin once these terms of reference are finalised. She said that she intends to gather evidence throughout this year, with public hearings beginning in 2023. She has made it clear that she will do everything in her power to deliver recommendations as soon as possible.
I acknowledge that lessons must and will be learned for us all. The Covid inquiry has two key aims: to understand the facts and to learn lessons from the pandemic. Although the timing is up to the chair of the inquiry, those are the fundamental things we must all address. It is expected that government departments also conduct post-legislative scrutiny on government legislation within three to five years of the Act obtaining Royal Assent. This will be another opportunity for further lessons to be learned.
Nothing is perfect, and certainly Governments are not perfect. In this extraordinary situation throughout the pandemic, to aid parliamentary scrutiny, the Government maintained a constant dialogue with parliamentarians, making regular Statements in both Houses. Since March 2020, in both Houses, the Department of Health and Social Care has led on 56 Oral Statements, 14 general debates, five Lords debates, 113 SIs, 53 Oral Questions, 28 Lords Topical Questions and so on. This engagement with the House was supplemented by regular No. 10 press briefings—about which some have complained—including direct questions from members of the public.
I agree that here too there are lessons to be learned, and your Lordships’ report will be a document of lasting relevance. The Government will always endeavour to provide opportunities for pre-legislative scrutiny. We firmly believe that decisions are made stronger through scrutiny and debate. Any changes to the public health Act or other emergency legislation, such as the Civil Contingencies Act, will be subject to parliamentary scrutiny.
In conclusion, I thank your Lordships again for your valuable contributions in this debate. As we move forward from the response to Covid-19 it is crucial that we learn lessons wherever possible and ensure that our democratic values and our love of liberty are upheld. I reiterate my thanks to the Constitution Committee, which produced these reports, and those who have continued to uphold the values of this House in scrutinising the work of the Government. Any Government is stronger for facing your Lordships’ House.
The Government remain fully committed to ensuring that Parliament has ample opportunities to scrutinise the actions taken during the pandemic and our continuing approach to emergency legislation. Emergency powers and temporary legislation must always be used with the utmost discretion. They should be effective but proportionate to the circumstances that present themselves. That is the challenge that your Lordships’ Constitution Committee has added to; that is the affirmation I make from the Dispatch Box.
The Government will continue work to ensure that the correct legislative vehicles are in place to deal with any emergency scenario that presents itself. This includes retaining the Part 2 powers in the Civil Contingencies Act as an option of last resort while keeping other options with which to react to specific issues. Any changes to legislation, powers or the processes by which we use them will always be subject to parliamentary scrutiny, and the Government, whatever their past failings and whatever the difficulties of the situation we went through, achieved many things for this country in responding to this unprecedented pandemic and led us through difficult circumstances into what we hope are better times. We will always endeavour to provide opportunities for pre and post-legislative scrutiny.
Baroness Drake (Lab)
My Lords, I thank everyone who has contributed to a really important debate, in terms not only of efficiently dealing with a national crisis of huge relevance to its citizens—I am sure this will not be the only one—but of integrity around a Government and a Parliament in how they go about protecting citizens in that emergency.
I am very grateful to the noble and learned Lord, Lord Hope, for his contribution, and particularly for stressing the importance of pre-legislative scrutiny in any amendment of the legislation. The Minister referred to any changes to legislation being subject to parliamentary scrutiny, but the Constitution Committee puts a powerful case as to why that should also include pre-legislative scrutiny. Again, I thank the noble and learned Lord for the importance he placed on the need to ensure that we work with the devolved Administrations across the UK so that we can deal with UK-wide emergencies as efficiently as possible. I thank everyone who contributed.
I will reflect on some of the points the Minister made. He took us in some detail through the 1984 public health Act and how it operated. Although I do not disagree with a lot of what the Minister said, there are two or three key messages from the Constitution Committee. The Act could have been added to by incorporating a lockdown power in the Coronavirus Act. It was not that the emergency procedures needed to be used—quite clearly there were several cases where they did need to be. The question was whether it was an emergency in every instance that they were used.
I absolutely acknowledge that a Government faced with the challenges that this Government were faced with need to move with speed on regulations, but that raises the bar for the expectations of the level of confidence that people need in the scrutiny of those actions taken by government.
On going forward with pan-UK working with the Administrations, I welcomed the Minister’s comments in respect of the initiatives being taken by the Secretary of State for Health. The Constitution Committee also produced quite a large report on the whole issue of governance within the UK, Respect and Co-operation. In a sense, the response in an emergency is part of a wider governance structure that applies, so I hope some of our recommendations in that report will also apply.
In conclusion, there is no question but that the Government faced an enormous challenge. They had to respond quickly and to protect their citizens. In an emergency, Parliament transfers to the Executive so that they can move at the speed necessary to do that, but the efficiency with which the Government deploy those powers is therefore so critical. The extent to which they are open to checks and scrutiny on the deployment of those powers becomes even more important, and that was the thrust of the Constitution Committee’s report. What are the lessons learned, and what is the experience that informed those lessons, so that the preparedness for the next emergency—I hope we never have one—and the confidence in the level of scrutiny and checks are there? However, I thank the Minister very much for his response.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, before the next Motion for debate is called, I advise the Committee that the noble Baroness, Lady Brinton, is unable to take part due to technical communication problems.