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

Lord Hope of Craighead Excerpts

Tuesday 21st June 2022 Grand Committee

[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.