Covid-19 and the Use and Scrutiny of Emergency Powers (Constitution Committee Report)

Lord Collins of Highbury Excerpts

Tuesday 21st June 2022 Grand Committee

[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.