Covid-19: One Year Report

Lord Tyler Excerpts

Thursday 25th March 2021 Lords Chamber

[Lord Tyler (LD) [V]]

My Lords, the legislation we are reviewing today was passed in a genuine emergency. The concern on 19 March 2020 was not whether it was too rushed, but whether it had been delayed too long. That is obviously no longer the case. Today we have all had 12 months’ experience of its operation, and even with the two-monthly reports and the current reassessment it is by no means evident that Ministers have taken full advantage of the lessons that have been learned.

It is the constitutional duty of your Lordships’ House to check, in the light of that experience, whether the Act includes what should be there, excludes what should not be there and manages appropriately what it does include. In the first category, it is abundantly clear, as has just been said, that the regulations for awarding contracts for Covid-related purposes have been woefully inadequate and that their lack of transparency has been outrageous. Each week, there seems to be yet another excuse from the Government to the courts that publication of a contract was delayed because civil servants were distracted by other Covid commitments, but once a contract was signed and sealed what were they, or indeed Ministers, doing with that contract which required even a day’s delay?

In the category of matters that were included, but clearly need not have been, the current long list of changes is ample testimony to necessary exclusions. However, we also would have expected Ministers to have corrected much earlier the confusion that the police and public encountered with charges for infringing regulations. The fact that, as at the end of February, every single prosecution under Sections 21 and 22 of the Act seems to have been found to be unlawful displays a woeful failure. That the CPS should have had to overturn 252 unlawful charges since March 2020 is a stain on our judicial system. It is important to reiterate the fact that necessary restrictions on movement, businesses and gatherings do not depend on this legislation. The Public Health (Control of Disease) Act 1984 would continue to exercise that control even if the House decided to take more time examining the validity of the very complicated and extensive provisions of this Act.

In the third category, the way in which the Act deals with what is legitimately included, we again have to remind Ministers that they no longer have the excuse of urgency and an unprecedented emergency. The report of our excellent Delegated Powers and Regulatory Reform Committee, published just four days after the Bill was introduced in the Commons, is salutary reading. Ministers will recall that its primary recommendation was as follows:

“Whilst in no way resiling from the appropriateness of this exceptional approach, we nonetheless believe that it is important for us to state clearly that, had the country not been in the midst of a developing national emergency, there are powers in this Bill, including far-reaching Henry VIII powers, about which our commentary would have been far more trenchant and our recommendations far more robust. Given this, we have recommended that the expiry date for the Bill should be set at one year without a power to extend—not two years, with the possibility of extension—thereby enabling the Government to exercise the powers needed in the immediate future while allowing a further bill to be introduced and subject to parliamentary scrutiny in slower time.”


Tragically, Ministers resisted that powerful advice.

The committee noted a host of Henry VIII powers for a number of very significant ministerial actions. In a number of cases, it drew the attention of this House to powers which were in no sense relating only to the coronavirus outbreak. It called for an “ironclad assurance” that they would not be used elsewhere. On what was then Clause 74, the Committee warned:

“A decision to suspend or revive emergency measures might well be politically contentious. We would expect such regulations to be subject to a parliamentary procedure.”


Even when there was a process included, as with the many Henry VIII powers, the Government proposed only the very limited negative procedure.

Nearly two weeks after Royal Assent, the Minister eventually responded to the DPRRC. He blandly dismissed recommendation after recommendation on the grounds of the

“serious and imminent threat to public health.”

He argued that the Committee’s concern over Clause 74, which became Section 88, was met:

“The regular reports to and debates in Parliament provide ample transparency, oversight and potential for challenge to the use of these powers.”


Sadly, the failure of the government business managers to enable the two-monthly reports to be scrutinised effectively has made that promise worthless.

This House took into account the exceptional urgency when it gave its consent to the Bill in March 2020. It did so with the grave constitutional misgivings of the DPRRC duly noted. Unless Ministers are now claiming that they have learned nothing from the past year and that they are as unclear on how to meet the current challenge of the pandemic as they were then, there is no justification for the House to sign another blank cheque. We should insist that the rushed, rough and ready legislation of March 2020 will no longer suffice.

Finally, today I grievously miss the usual Greaves forensic analysis—

[Baroness Penn (Con)]

My Lords, I must remind the noble Lord that there is a time limit for Back-Bench contributions of five minutes.

Healthcare (International Arrangements) Bill

Lord Tyler Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

[Lord Judge]

My Lords, we have here a new example of constitution-making. We have now got rid of Henry VIII in this Bill and we have something rather more subtle—not something that that great, mighty ogre could have conceived of for himself.

The new example is:

“Regulations under subsection (1) may, for example”.


Those of your Lordships who were in the House when we discussed the Trade Bill last week will remember another regulation-making power—another blockbuster like this one—only the words used were not “for example” but “among other things”, in relation to regulations under whichever subsection it was. What kind of primary legislation is this? It is really rather alarming. The primary legislation provides:

“The Secretary of State may by regulations”,


do this, that and the other: (a), (b) and (c). Well, fine. The regulations “may” do nine things—there is an amendment to one of them to come later, but this is not relevant to present purposes—specifying just about anything you can think of.

Why do we not say, even in relation to the EU, that the regulation-making power should be defined as widely as it is in Clause 2(2) but not extend further? The reality is that, with these words, in truth there is no limit to the regulation-making power. I find that astonishing, and I suspect that many Members of your Lordships’ House will find that astonishing. So we now have within the terms of the Bill—subject to the Henry VIII point, which is going—in effect an undefined, unconstrained power given to the Secretary of State to make regulations. It will not do.

[Lord Tyler (LD)]

My Lords, I am delighted to follow the noble and learned Lord, Lord Judge; he has been totally consistent in this field, and I very much sympathise with the point he has just made.

I serve on the Delegated Powers and Regulatory Reform Committee and, although I cannot speak on its behalf, I think it would share with me the view that the way in which the Minister has responded to our concerns and corresponded with us has been exemplary. We thank her, I am sure, for that; it is very valuable. However—she probably anticipated a “however”—in our report of 14 February there were two critical paragraphs to which she has not responded in the various exchanges we have had with her. I hope your Lordships’ House will not mind if I read them, because they are extremely important, not just for this Bill but for a whole series of Bills that have been coming before us in recent weeks. The paragraphs refer to some of the correspondence we had with the Minister, and go as follows:

“The Minister repeatedly refers to the need for ‘flexibility’, given that reciprocal healthcare arrangements remain subject to negotiation. She says that there must be flexibility as to the meaning of healthcare, as to the persons who can be funded and as to the persons to whom functions can be delegated. The Minister says, at paragraph 19: ‘This is a forward-looking Bill and so flexibility is key’”.


We then put in our report, in heavy type:

“Powers that are too wide are not the more attractive for being part of a ‘forward-facing’ and ‘forward-looking’ Bill”.


We continued:

“At paragraph 29, the Minister says again that the Bill is a ‘forward-facing Bill’, this time to justify taking powers to go beyond replacing current EU arrangements”.


Again, in heavy type the report continued:

“Given that post-Brexit reciprocal healthcare arrangements are the Bill’s principal target, the powers in clause 2 to make law governing the provision of healthcare by anyone anywhere in the world could have been more effectively circumscribed”.


Those two paragraphs are not just appropriate to this Bill but demonstrate how, on many occasions in recent weeks, we have been effectively offered a skeletal Bill, with very considerable primary legislation made subject to largely unspecified future executive powers. Very often, it would seem, there is good reason, because of urgency or expediency. We are, however, establishing precedents for the post-Brexit situation. At the moment this can be used as an excuse—perhaps only for a few more days before the other place decides that the timescale is ludicrous—but it is not acceptable that we are constantly given legislation for a particular purpose and told that Ministers must have very wide-ranging, unspecified future powers simply for reasons of urgency. As the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks, have said, if we are not very careful we will establish precedents in this way.

I hope that when the Minister responds—having not previously done so in her exchanges with the Delegated Powers and Regulatory Reform Committee—she will comment on the particular points that were made in the report’s recommendations.