Covid-19: One Year Report

Lord Beith Excerpts

Thursday 25th March 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, I shall concentrate on what I see as the danger that practices and habits developed during the crisis may turn into long-term changes to our democracy. In no way do I underestimate the seriousness of the pandemic threat or the need for decisive government action to lead our response to it, but there have been serious mistakes and there are serious dangers.

First, it has become a habit of government to bypass even the very limited processes for parliamentary scrutiny of secondary legislation with a statement asserting that

“by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.”

That is true of one of the statutory instruments that we are debating today. The Government did that even when the changes involved had been announced days or even weeks in advance of the instrument being laid. Emergency and urgency are not the same thing.

The Government are assisted in that habit by the decision not to use the Coronavirus Act for the main provisions that restrict individual liberties but to rely instead on the Public Health (Control of Disease) Act 1984 as amended in 2008. One of the results of that was that hundreds of people were wrongly given fixed penalties, charged or even convicted because the police did not understand the new laws, and in some cases the Crown Prosecution Service appeared not to either. If Parliament had been told during the passage of the Coronavirus Act that different, earlier legislation was going to be used—I do not remember that being mentioned at all during the discussions on the Bill—some of those problems would have been anticipated and avoided. That is one of the benefits of parliamentary scrutiny.

Secondly, the police were left confused and misdirected on both the extent of the law and how to enforce it. That is compounded by the multiple, overlapping and sometimes erroneous legislation they are expected to digest and enforce. The problem is made even worse by a repeated, and probably deliberate, blurring of the line between law and guidance. The term “rules”, which is widely used by Ministers, is one recent example of that, where it was unclear whether he was talking about things which were law or things he was recommending as guidance. The Prime Minister at one point said, “I am instructing you to stay at home”. Prime Ministers do not have a power of instruction.

I have no problem with Governments in a situation like this issuing very strong advice, calling on people to behave responsibly and setting out the dangers to all of us of not doing so. But we will have a problem if the police treat ministerial advice and guidance as if it has the force of law. That is government by decree and government by press conference, and we saw where it can lead at the Clapham vigil.

The problem is made even more serious by legislating that it is an offence for an English citizen to be outwith his or her home in their own country unless covered by specific exemptions, which an officer of the state has to interpret if there is a challenge. That is very different from, for example, a requirement to wear a face mask, a ban on gatherings or a restriction on business premises where there is considered to be a high risk. It is a national curfew, a system of house arrest, which changes the relationship between the state and the citizen. That part of the legal framework expires at the end of this month, and I hope never to see it again.

Returning to the issue of the Clapham vigil and those disgraceful scenes which were witnessed across the world, it is clear that the Government should never have removed from the regulations the right to democratic protest and demonstration, subject to police guidance and existing law. It is far better to facilitate a regulated demonstration with social distancing and control of numbers, with action under existing law to deal with those who subvert peaceful protest by violence, as happened so disgracefully at Bristol.

A further, less well-known feature of the pandemic legislation is that it allowed the Scottish Government to close the border between England and Scotland, effectively achieving a partial reversal of the Act of Union and breaking up the common travel area. There has not been much enforcement because the police do not have the resources to do that. It may be argued that there was an overriding public health need to impose such a restriction, but I find it curious that neither England, nor the United Kingdom Government and Parliament, had any say in the matter at all.

I return to my central question: what are we doing to rebuild the structure and principles of good governance? We need updated legislation to deal with emergencies, which must be given thorough parliamentary scrutiny and have scrutiny built into its operation. Parliament in both Houses must assert its right to scrutinise secondary legislation without being habitually bypassed by the urgency provision. We must end the confusing language which has the effect of extending law enforcement into advice enforcement and rule by decree. Citizens are entitled to know, and to be correctly advised on, what is legally required of them and what, in the Government’s view, it is socially responsible for them to do. They are not the same thing.

Covid-19

Lord Beith Excerpts

Thursday 11th February 2021 Lords Chamber

[Lord Bethell (Con)]

I am extremely grateful for the noble Viscount’s kind remarks. They are rightly directed at those responsible for the deployment of the vaccine. The NHS itself has been a central player in all that, as have our academic colleagues, particularly at Oxford University but also Imperial, as well as others who have contributed. I will take his remarks back to the Department of Health and Social Care. It has been a very tough year, and I am extremely grateful for his remarks.

[Lord Beith (LD) [V]]

My Lords, the Minister is right that there must be a penalty for lying about which countries you have been to in these circumstances, but I am surprised at how confident he is that the Forgery and Counterfeiting Act 1981 is a good tool for this purpose. Some offences under it do not attract a ten-year maximum but a two-year maximum, and it seems unlikely that a court would impose a substantial custodial sentence when comparing this with other offences. Does he not recognise that all the headlines about a 10-year prison sentence undermine credibility in the Government’s strategy at a time when we need to support and encourage it?

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the noble Lord’s legal insight and will leave it to the courts to decide whether he is right or wrong.

Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020

Lord Beith Excerpts

Wednesday 14th October 2020 Lords Chamber

[Lord Beith (LD) [V]]

My Lords, I am addressing the House from Berwick-upon-Tweed. Here, local businesses and families are subject to the high level of restriction chosen for the needs of Newcastle and Tyneside, but that is 65 miles away. Berwick is not part of the Tyneside travel-to-work area. People who travel to or from work in Berwick do so mostly from the nearby towns in the Scottish Borders. There is no university or college bringing students into the area.

We have the data on the issue to which I want to draw the Minister’s attention. The Government publish figures for every area of the country in population units of 7,200. The number of new cases in the last week per 7,200 people in Newcastle Central was 335, a horrifying figure. In Berwick, the equivalent figure per 7,200 people was between zero and two—so small that it is not specified whether it was nought, one or two. In the area around Berwick, there were a further five cases. No logical system would treat these two areas in exactly the same way; it is the result of relying on the boundary of the huge Northumberland unitary authority, which we were pushed into against our will, and the North of Tyne Combined Authority. It is challenging enough for local businesses being in the “high” category; it would be grossly unfair if, with so few cases, we were put into the “very high” tier or subjected to other restrictions designed to fit areas showing the very highest increase in cases.

The Minister used the words “local dialogue” in his remarks. I would like an assurance from him that, if Berwick remains so very far below Tyneside in the incidence of new cases and if consideration is given to raising Northumberland into the “very high” category, careful consideration will be given to excluding the relevant local government boards in and around Berwick. Public confidence in dealing with this crisis requires a system that is sensitive to such huge differences. Clearly, if a decision is made that there should be a short circuit-breaker lockdown, which has been the subject of much discussion in the media today, we will accept it. However, as long as there is a tiered system designed to fit the situation in particular areas, that system should operate logically and I ask the Minister to ensure that it does.

Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020

Lord Beith Excerpts

Tuesday 6th October 2020 Lords Chamber

[Lord Beith (LD)]

My Lords, I thank the noble Lord, Lord Lamont, for tabling his amendment to focus attention on the deficiencies of process which have attended these and related regulations. I very much welcome the fact that my noble friends Lady Bakewell and Lady Walmsley, the noble Baroness, Lady Wheatcroft, and others have pointed out some of the awful inconsistencies that are resulting from these kinds of regulations. The noble Baroness, Lady Massey, quite rightly pointed to the failure to consult closely with local government in a number of instances where, if proper consultation had taken place, it could have made a real difference.

Confusion is widespread, as is inconsistency. A resident of Berwick, where, according to the Government’s dashboard figures, there are three cases per 7,000 people, is being subject to the same restrictions as those in parts of Tyneside 60 miles away, where in one area there have been more than 280 cases per 7,000 people. The regulations lack any ability to distinguish. Indeed, a citizen of the north of England, whether the north-east or the north-west, having secured a copy of the regulations we are debating today, might think that they would be able to glean what the law is, but they would be mistaken because they would also need to look at a series of other regulations. They would find themselves bound not just by the rule of six but by the rule of two, which is actually the rule of not meeting anybody else at all. You are not even allowed to meet one other person; you are the only person you are allowed to meet under those regulations.

To understand the law, the citizen would also need to look at the Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) etc.) Amendment Regulations 2020, which were made on 29 September and came into force at midnight on that day, but were laid before Parliament only at 10.30 am the following day, and therefore accessible to us—10 and a half hours after they had come into force. As far as I could establish, they were not on the Government website at 8 am that day. The Prime Minister had no idea what the provisions were anyway, while the previous statutory instrument relating to the north-east had to be amended within hours of being made.

I welcome that the Government have promised parliamentary votes on major orders of national application, but I have to say that the loss of freedom in Berwick, Blackburn or Bolton is no less significant than the loss of freedom in London and other parts of the country. Some of these local orders are of massive significance in terms of the civil liberties they abrogate.

I agree with the noble Lord, Lord Hutton of Furness, who made a related point, that we need to question the Government’s attitude to the made affirmative procedure under which orders come into force before Parliament has considered or approved them. They have been overused. I recognise that sometimes there is a case for using them to guarantee that an order will come into effect quickly if there is a very serious need for it, but Parliament can act quickly if the Government are prepared to co-operate. I hear criticisms of Parliament, such as by the noble and learned Baroness, Lady Hale, for not having considered and debated these matters, but the Government control the agenda in the House of Commons, so Parliament’s inability to act quickly is a matter for the Government to resolve. I am glad to see that the Minister has noted that point because it can be the Government who hold up debate.

I do not see why new restrictions which have been announced many days—or even a week or more—before they come into force cannot be debated. When they are announced, the order should be laid before Parliament and strenuous efforts made in the days before they come into force to have at least the short debates for which our procedures provide. The capacity for democratic control over major incursions into people’s freedoms should not be diminished because not enough resources have been made available to draft the orders in time.

Parliamentary scrutiny can identify bad drafting and increase the chance that at least some people inside and outside Parliament will actually understand what the law is. There are several threats to the effective application of emergency measures: when the public do not understand them or the reasons behind making them, a point which has been illustrated in this debate by a number of noble Lords; when those responsible for enforcing them do not know what is the law and what is guidance, a mistake which has even been made by police forces and the Crown Prosecution Service; and when the measures are themselves defective to the point that even those responsible for carrying them out have failed to recognise that they are, so that prosecutions have to be abandoned or fail. All these problems would be addressed and reduced by parliamentary scrutiny. As the noble Lord, Lord Lamont, has argued, there needs to be a clear government strategy and we need to know what it is.

Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020

Lord Beith Excerpts

Friday 25th September 2020 Lords Chamber

[Lord Beith (LD) [V]]

My Lords, two minutes is an impossible amount of time in which to analyse this stack of superseded orders, although noble Lords have made some very telling points. For example, the noble Lord, Lord Forsyth, spoke about the use of the Public Health (Control of Disease) Act 1984—a chillingly appropriate name for an Act giving very sweeping powers, which I think have been wrongly used in some instances in this matter.

These orders restrict civil liberties because of the seriousness of the emergency, but Parliament must have the ability to scrutinise and consent to each and every incursion into civil liberties. The Government have to act quickly, but Parliament can also act quickly if, and only if, the Government co-operate in enabling it to do so. However, the present way of doing things causes confusion in the public’s mind and a lack of understanding of what is law and what is merely guidance. Ministers use terms such as “rules”, which seem to fall somewhere between the two. There is no place between the two; there is law and there is guidance.

In this country, announcements on TV by Ministers are not the law. Parliament makes laws and is part of the process of securing public assent and co-operation, which are absolutely essential in dealing with the present crisis. This House has a major part to play in constructive scrutiny. Parliament as a whole really must get a stronger grip on this process, but the Government can facilitate or obstruct that. They should begin to recognise that public support and willingness to co-operate will steadily dissipate if there is a belief that Ministers are just making it up as they go along without any proper process of scrutiny or approval.