Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Joe Cannon
This article explores parliamentary scrutiny regarding lockdown restrictions amid calls for a new ‘Public Health Act’, an idea proposed by a group of lockdown-sceptic Conservative MPs. To be clear: this article does not seek to consider the merits of lockdown, nor make any judgment as to whether they are the correct policy for the UK government to pursue. Rather, this article considers the parliamentary scrutiny of the Covid-19 health measures (or lack thereof), showing that, regardless of whether one support lockdowns or not, greater parliamentary scrutiny of the Covid-19 response measures is something that should be universally supported.
What is parliamentary scrutiny?
Parliamentary scrutiny is the close examination and investigation of government policy and acts that is carried out by both Houses of Parliament.[1] It is one of Parliament’s ‘main roles’.[2] An in-depth discussion of the academic perspectives on the proper role of parliamentary scrutiny in the UK constitutional order is beyond the scope of this article, yet, a brief overview is warranted.
A key distinction in academic argument on the role of Parliament in scrutinising the executive, at least traditionally, is between legal and political constitutionalists. Simply, political constitutionalists favour Parliament as the main scrutineer of the executive, whereas legal constitutionalists emphasise the court’s important role in doing this. Whilst academic debate once forced one to make a ‘stark choice’[3] between one or the other, the co-existence of the two is within the same constitutional order is now widely accepted. Yet, debates remain over what the correct ‘mix’[4] of the two should be.
Simply, the lack of parliamentary scrutiny afforded to Covid-19 measures throughout the pandemic starkly contrasts with the political constitutionalist model – the model traditionally used to describe the UK’s constitution. This is an important point, as it highlights how far-reaching the consequences of this article’s topic are – it could have powerful implications for the future of the UK constitution.
What has been the procedure for covid-19 measures so far?
The procedure for scrutinising Covid-19 legislation so far has been concerning to say the least. For Adam Wagner, it was ‘extraordinary’[5] that such restrictive rules could be made without parliamentary scrutiny. Yet, that is what occurred in March 2020, when Matt Hancock imposed lockdown on the UK without Parliament playing any real role. He could do this as the law was secondary legislation – regulations made by government ministers – rather than primary legislation which, of course, is subject to parliamentary scrutiny via the House of Commons and House of Lords.
As made clear by Jonathan Jones, this is problematic – the controls are ‘unprecedented in their nature and scope’,[6] thus many cannot be described as ‘secondary or merely technical’.[7] This problem is exacerbated by the fact that the most urgent form of parliamentary procedure has usually been followed, whereby new regulations are ‘not subject to any parliamentary scrutiny before they come into force and, typically, very little afterwards’.[8]
As argued by Wagner, ‘there may have been justification in March for using emergency procedures to bypass Parliament but there has not been since’.[9] This point is especially important – the use of secondary legislation to enact Covid-19 response regulations was not exclusive to the first lockdown. In fact, most of the Covid-19 legislation has been passed via secondary legislation, thus subject to little scrutiny. Crucially, where such rules are so restrictive, the ‘gold standard of democratic accountability’ is required, ‘not a rushed procedure which side-lines Parliament’.[10] Yet, it is this rushed procedure that has characterised the UK’s approach throughout the entire pandemic.
What are the proposals?
Steve Baker, deputy chair of the Covid Recovery Group, has made calls for a new Public Health Act.[11] The plans, generally, are:
An ‘improved set of democratic checks and balances’[12] aimed to prevent governmental ‘overreaching’.[13]
The introduction of ‘proper impact assessments’,[14] requiring ministers to weigh up the benefits and costs of measures ‘in light of its impact on health, on education, on the economy and on personal liberty’.[15]
The requirement that measures have Parliamentary approval before coming into effect, unless too urgent.
The expiration of measures after no more than 30 days, unless renewed.
Whilst these proposals are coming from a group of anti-lockdown MPs, greater scrutiny of lockdown legislation is something that should be supported by all. This particular proposal has a clear anti-lockdown stance – the requirement of proper impact assessments is an obvious attempt to make the implementation of lockdown more difficult. Yet, it proposes a more transparent process, one which is more conducive to both parliamentary and public scrutiny.
The first proposal appears too vague to comment on in any real detail, yet, it represents an important aim in changing the way that legislation of this type is approached – it cannot become accepted practice that a Government Minister can impose restrictions without parliamentary checks. Similarly, the third and fourth proposals are desirable – both would ensure that the current unchecked, unaccountable and unscrutinised process could not be repeated. Overall, whilst these proposals are not perfect, they represent a better approach than what is currently being pursued by the UK government.
Conclusion
While Boris Johnson has made clear that he wants this lockdown to be the last,[16] the lack of scrutiny that the Covid-19 measures were subject to is important and must be addressed for a few reasons. Firstly, there is no guarantee that this lockdown will be the last,[17] and, even if it is, Covid-19 regulations in some form will remain for the foreseeable future – proper scrutiny of these is necessary. Similarly, this is certainly not our last pandemic, nor national emergency, thus, again, a thorough reconsideration of legislative procedure in these circumstances is a necessity, even after Covid-19. Finally, the issues in parliamentary scrutiny of Covid-19 regulations go beyond the pandemic – parliamentary scrutiny of the executive is a core feature of the UK constitution, especially for political constitutionalists. Do the past twelve months represent a move further away from this model? Has parliamentary scrutiny been shown to be non-essential, free to be departed from during crises?
This article cannot accept that this is the case. March lockdown aside, the fact that the most severe restrictions on liberty imposed in modern UK history can still be passed with few checks, a year on from the start of the pandemic, shows that something has to change. A new Public Health Act, though not necessarily Steve Baker’s iteration, is therefore necessary.
[1] ‘Parliamentary Scrutiny’ (UK Parliament) https://www.parliament.uk/site-information/glossary/scrutiny-parliamentary-scrutiny/ [2] ‘Checking the work of government’ (UK Parliament) https://www.parliament.uk/about/how/role/scrutiny/ [3] Adam Tomkins, Our Republican Constitution (Hart Publishing 2005). [4] Adam Tomkins, ‘What’s Left of the Political Constitution’ (2013) 14 German Law Journal 2275, 2276. [5] Adam Wagner, ‘The risk of eternal lockdown’ UnHerd (8th February 2021) https://unherd.com/2021/02/the-danger-of-eternal-lockdown/ [6] Jonathan Jones, ‘The government's hasty Covid law-making cannot become a template for the future’ The Guardian (18th February 2021) https://www.theguardian.com/commentisfree/2021/feb/18/governments-hasty-covid-law-making-template-future [7] ibid. [8] ibid. [9] Wagner (n 5) [10] ibid. [11] Danielle Sheridan, ‘Introduce Public Health Act to stop Government imposing Covid restrictions without scrutiny, say MPs’ The Telegraph (14 February 2021) https://www.telegraph.co.uk/politics/2021/02/14/introduce-public-health-act-stop-government-imposing-covid-restrictions/ [12] Steve Baker, ‘Ministers must never again be free to impose crippling restrictions without proper scrutiny’ The Telegraph (14th February 2021) https://www.telegraph.co.uk/news/2021/02/14/ministers-must-never-free-impose-crippling-restrictions-without/ [13] ibid. [14] ibid. [15] ibid. [16] Greg Heffer, ‘COVID-19: 'We want this lockdown to be the last', says Boris Johnson as he plans for 'irreversible' easing of coronavirus restrictions’ Sky News (16th February 2021) https://news.sky.com/story/covid-19-we-want-this-lockdown-to-be-the-last-says-boris-johnson-as-he-plans-for-irreversible-easing-of-coronavirus-restrictions-12219202 [17] Lucy Campbell, ‘No guarantee this Covid lockdown will be England's last, says minister’ The Guardian (19th February 2021) https://www.theguardian.com/society/2021/feb/19/no-guarantee-this-covid-lockdown-will-be-englands-last-says-minister
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