18 months of COVID-19 legislation in England: a rule of law analysis

Eighteen months after the first COVID-19 lockdown began, the Bingham Centre for the Rule of Law has produced a report analysing the extent to which the government’s pandemic response has changed over the last year so as to address rule of law concerns that were brought to the government’s attention in the early stages of the pandemic. Katie Lines, author of the report, argues that the government has failed to enable proper parliamentary scrutiny, made it hard for public and politicians alike to know what the law actually is, and that its response to rule of law concerns has been lacking.

The initial crisis stage of the pandemic has now passed, and many are asking what lessons can be learnt from the government’s response. Last month the‘lessons learnt’inquiry held jointly by the Health and Social Care Committee and Science and Technology Committee published its first report, and an independent public inquiry into the pandemic is due to launch in spring 2022.

A central question is how far the existing legal framework and institutional arrangements for responding to public health emergencies adequately protect the rule of law. The rule of law is a foundational principle of any constitutional democracy, and should not be set aside during a national emergency: sustained compliance can actively assist an effective pandemic response by promoting transparency, equality, and accountability, among other principles. 

Our main rule of law concerns with the UK’s legislative response to the pandemic can be grouped into two categories:

1. Parliamentary scrutiny; and

2. The accessibility and clarity of coronavirus legislation.

Parliamentary scrutiny

  1. Information and evidence made available to parliament

Parliament cannot properly scrutinise proposed legislation without knowing its evidential basis and potential impact. During the first six months of the pandemic, the government was criticised for not being sufficiently transparent in disclosing the evidence and advice upon which COVID-19 laws were based. Some positive changes were made in response, including the Scientific Advisory Group for Emergencies establishing a regular publication schedule of minutes from its meetings. However, there are continued examples of the government not providing parliament with sufficient information. A good example is the production of impact assessments.

In the first six months of the pandemic, the government was repeatedly told that parliamentarians needed to see impact assessments in order properly to scrutinise proposed COVID-19 legislation. When lockdown regulations were debated in the Lords in July 2020, peers asked why parliament was ‘not seeing any impact assessments at all, on any of these statutory instruments.’ By the summer of 2020 there was often a gap of a few weeks between measures being announced and corresponding legislation being introduced, but impact assessments were not carried out even in relation to such deferred measures.

Despite these well-publicised concerns, the government has continued to fail to provide parliament with impact assessments, even when proposed measures will inevitably have profound social, economic and health impacts. Virtually none of the COVID-19 regulations that the Bingham Centre has reviewed have been accompanied by an impact assessment. A notable recent example is the regulations which require care home workers to be vaccinated – a significant and controversial measure with obvious wider implications. The regulations were laid before parliament on 22 June 2021 and did not come into force until 11 November. On 8 July, the Secondary Legislation Scrutiny Committee recommended that parliament’s consideration of the regulations be deferred until a full impact assessment was available, because otherwise ‘effective parliamentary scrutiny is impossible’. Nonetheless, the Commons debate on the regulations took place on 13 July, without an impact assessment. A brief statement of impact was published the following week, which concluded that around 40,000 care home workers were unlikely to be fully vaccinated by the time the regulations came into force, and would therefore be unable to continue working. The Commons should have had access to this information before being asked to approve the regulations, and it is unclear why the debate could not have been deferred to facilitate this.

  1. The use of delegated legislation

While the Coronavirus Act 2020 is an incredibly important piece of legislation, many laws enacted in response to the pandemic have come not from the Act itself, but from a wide array of statutory instruments (SIs). At the time of writing, over 500 COVID-related SIs have been laid before the UK Parliament. While many deal with minor matters, others instituted unprecedented changes to people’s everyday lives. The national lockdowns were enacted using SIs, as was the hotel quarantine system. 

This reflects a general trend, starting well before the pandemic, towards the increased use of SIs to legislate in areas of principle and policy, rather than simply administrative or technical detail. This is concerning from a rule of law perspective, as SIs cannot be amended by parliament other than in exceptionally rare circumstances, and receive very little parliamentary time for debate.

The use of SIs to enact significant policy changes was understandable in the early phases of the COVID-19 emergency, in order to enable a swift and nimble pandemic response. However, by the six-month mark the justification was less clear. By this time, the virus was better understood, and the type of interventions needed could to a large extent be predicted in advance. The Bingham Centre made this point in September 2020, and parliamentarians raised similar concerns. For instance, when the regulations implementing the self-isolation regime were debated in the Lords on 22 October 2020, Lord (Paul) Scriven stated that ‘[s]elf-isolation during a public health threat is not something that you cannot foresee. This should have been proper, primary legislation.’

Nonetheless, the government has continued to avoid using primary legislation, even for significant and controversial policy changes announced weeks prior to implementation. For instance, the regulations requiring care home workers to be vaccinated were laid before parliament on 22 June 2021 and came into force on 11 November. When they were debated in the Lords, several peers stated that the policy should have been made via primary legislation, noting that there was ample time for this to have taken place.

  1. The procedures used to enact COVID-19 delegated legislation

There are also rule of law problems with the procedures used to make COVID-19 SIs. One of the most frequently raised concerns at the six-month mark of the pandemic was that the government was routinely using procedures which allowed for the minimal level of parliamentary scrutiny possible. In emergencies, public health regulations can come into force without being approved by parliament, so long as the Secretary of State makes a declaration that they are of the opinion that this is necessary ‘by reason of urgency’. This means that parliament does not need to even have sight of urgent regulations before they come into effect. The urgent procedure is an extremely weak and, before the pandemic, a very rarely used form of control.

It may be necessary to fast-track legislation in this manner when responding to an emerging crisis. However, the urgent procedure was used long after the initial emergency period of the pandemic had passed, leading the Public Administration and Constitutional Affairs Committee to conclude in September 2020 that ‘the use of the urgent procedure has not always been justified.’ In addition, in the first six months of the pandemic, parliament was often not given a chance to scrutinise COVID-19 regulations until weeks, and sometimes months, after the regulations had come into effect. By this time many regulations had been superseded, rendering scrutiny an academic exercise and preventing any meaningful parliamentary involvement in the legislative process.

Parliamentary discontent with being side-lined came to a head at the six-month renewal debate of the Coronavirus Act in September 2020, where the Speaker of the House of Commons, Lindsay Hoyle, firmly urged the Government to ‘rebuild the trust with this House and not treat it with the contempt that they have shown’. The Health Secretary attempted to quell this growing parliamentary dissatisfaction by agreeing that ‘for significant national measures with effect in the whole of England or UK-wide’ the government would ‘wherever possible… hold votes before such regulations come into force.’ When the Health Secretary was asked to clarify what his promise meant in practice, he confirmed that the government would continue to use the urgent procedure, but would try to allow parliament to debate and approve COVID-19 regulations before they came into force. This meant that parliament would still be afforded only a very limited opportunity for scrutiny, and the Health Secretary’s promise did not address concerns that the urgent procedure was no longer justified.

The government has, for the most part, kept the limited promise that it made. This is commendable, but the speed with which the government was able to begin facilitating greater scrutiny highlights the limited justification for parliament’s marginalisation in the first six months of the pandemic. Parliamentary scrutiny could have been prioritised at a much earlier stage if the government had had the political will to do so.  This must be one of the important lessons to be learned when looking back at how our democratic institutions dealt with this unprecedented public health emergency.

In addition, the urgent procedure has remained the default means of law-making, even when ministers have announced legal changes well in advance. The continued, habitual use of delegated legislation and the urgent procedure to enact major pieces of COVID-19 legislation suggests a seeming reluctance among ministers to relinquish the expanded law-making functions that the government understandably took to itself at the start of the pandemic.

The accessibility and clarity of the law

  1. The accessibility and clarity of COVID-19 legislation

A central component of the rule of law is that laws must be accessible and foreseeable, which includes legislation being published in advance of its implementation. Individuals cannot claim rights to which they are entitled, or perform their legal obligations, if they cannot reasonably discover what those rights and obligations are.

One consequence of regulations continuing to be rushed through parliament is that new COVID-19 laws have come into force at very short notice, making it virtually impossible for individuals and businesses to fully understand their rights and responsibilities before the new law comes into effect. The need for swift implementation has not always been clear. To give a recent example, on 17 September the government announced that restrictions on international travel would be eased from 4 October. The relevant regulations were laid on 1 October and came into force only 3 days later. If the government knew on 17 September that the law would change by 4 October, why could the regulations not have been made and published sooner, to give those affected more time to understand the new law before they were required to follow it?

Further problems have been caused by significant legal changes being introduced via amending regulations. This is not an issue in itself, but it is very difficult to make sense of regulations which amend a previous set of regulations without seeing a consolidated version incorporating the changes. However, amending regulations have been introduced at such short notice that a consolidated version of the original regulations has not always been publicly available by the time the new law comes into force. For instance, a consolidated version of the regulations creating hotel quarantine was not published until 6.52pm on 15 February 2021, when the law had come into force at 4am that day.

Therefore, continued use of the urgent procedure has further significant rule of law implications going well beyond concerns about limited parliamentary scrutiny.

  1. The clarity of government messaging on COVID-19 legislation

Inaccurate or confusing government statements of the law undermine the rule of law and are likely to damage trust in government messaging. From the start of the pandemic, the government’s public health advice has been more restrictive than the corresponding legal rules. For instance, during the first English national lockdown the government advised people only to exercise outdoors once a day, whereas the law placed no corresponding limit on outdoor exercise.

There is no inherent rule of law problem with government advice being more restrictive than legal requirements. However, government guidance published in the first six months of the pandemic did not clearly distinguish between public health advice and the law, leading commentators to conclude that ‘it was not possible for people to know, without a high level of sophisticated legal knowledge, whether statements contained in the COVID-19 guidance were statements of law… or public health advice.’

There are rule of law problems with the government portraying its advice as having the force of law, especially when that advice is more restrictive. First, the public and the police are highly likely to become confused about what the law actually is. We saw this during the early stages of the pandemic, when police forces incorrectly issued fixed penalty notices to people who had acted in contravention of government guidance, but not the law.

More fundamentally, the rule of law requires parliament to have legislative supremacy so as to ensure that law-making is democratic and subject to proper scrutiny, and to protect against the arbitrary exercise of executive power. The government effectively bypassed parliament’s role in law-making when it portrayed its advice as having the force of law.

The problems caused by the government’s elision of law and guidance were brought to ministers’ attention on multiple occasions, at an early stage. For example, in May 2020, a motion was tabled in the Lords to discuss the issue. Nonetheless, government messaging has continued to present public health advice as having the force of law. To give an example, the Bingham Centre recently published a report on the Test and Trace regime, which discussed how government messaging has suggested people have a legal obligation to self-isolate if ‘pinged’ by the NHS app, when no such obligation exists.

Conclusion

The government’s response to rule of law concerns has been limited and insufficient. Looking back over the last 18 months, the irresistible conclusion is that the existing legal framework and institutional arrangements for responding to public health emergencies do not adequately protect the rule of law. There is therefore an urgent need to distil the lessons about the extent to which our current legal framework and institutional arrangements are able to ensure that our response to public health emergencies is also compatible with our commitment to the rule of law.

This is the latest in a series of Unit posts about the continuing effects of COVID-19 on the constitution.

About the author

Katie Lines is a Research Fellow in Rule of Law Monitoring of Coronavirus Legislation at the Bingham Centre for the Rule of Law and author of 18 Months of COVID-19 Legislation in England: A Rule of Law Analysis, which was published on 16 October.

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