The Covid-19 pandemic tested the UK’s capacity to respond to a crisis, including its ability to maintain the rule of law. The Independent Commission on UK Public Health Emergency Powers considered how far current legal frameworks and parliamentary procedures protect the rule of law and human rights, and how far they promote accountability, transparency and parliamentary control of executive action. Its final report and recommendations are summarised here by Katie Lines.  

Towards the end of this week, on 18 July, the UK Covid-19 Inquiry will publish its first interim report on the UK’s resilience and preparedness for the coronavirus pandemic. ‘Resilience and preparedness’ is one of many topics the UK Inquiry aims to cover in its terms of reference, which include health and social care, and economic responses to Covid-19. However, the constitutional and rule of law dimensions of the UK’s Covid-19 response fall outside the Inquiry’s key areas of focus, as do parliamentary proceedings during the pandemic. These items are also not central to the Scottish Covid-19 Inquiry’s investigations. 

To ensure that the constitutional dimensions of the Covid-19 pandemic receive independent scrutiny, in 2022 the Bingham Centre for the Rule of Law established the Independent Commission on UK Public Health Emergency Powers. The Commission published its report on 15 May this year after 15 months of intensive work by the 12 Commissioners, chaired by former Court of Appeal judge Sir Jack Beatson. The Commission considered both written and oral evidence, and comments on their preliminary findings, from 82 individuals and organisations across the UK and in 10 other jurisdictions. The report’s 44 recommendations for change cover the design of legislation, the role of parliaments, the clarity and certainty of emergency public health laws, the enforcement of public health restrictions, and the management of a public health emergency in a country with devolved governments and legislatures. This blog highlights some of the Commission’s key recommendations. 

The role of parliaments 

The Commission has significant concerns about the extent to which the UK Parliament and the three devolved legislatures were able to provide appropriate scrutiny and oversight of government law-making during the Covid-19 pandemic. A number of its recommendations focus on enhancing the role of parliaments.  

One of the Commission’s key recommendations is that the four UK governments should only be able to use urgent law-making processes to make public health regulations without prior parliamentary scrutiny when ministers have issued a declaration of an ‘urgent health situation’. A draft of the declaration should be approved by the legislature in advance of it being made, although there should be provision for retrospective approval (or rejection) if it is not practicable to secure advance parliamentary approval.  

 The declaration would delineate the start and end of an acute period of crisis during which resort to urgent law-making without prior parliamentary scrutiny is appropriate. It would also alert the legislature to the government’s intention to have recourse to urgent law-making powers, and give parliamentarians the opportunity to express general concerns and make recommendations about the response to the public health emergency. 

Before a minister makes a declaration, the Chief Medical Officer would have to be consulted and the legislature informed of the advice given. The declaration should be subject to a two-month sunset period and could only be renewed following a parliamentary debate and vote to extend it. That would give parliamentarians a chance to review the strategy of the government’s response to the emergency, and require ministers to justify why urgent law-making continued to be warranted. 

The Commission also recommends that changes be made to parliamentary procedure. One key recommendation is that in future public health emergencies, a specialist emergency committee should be established, similar to the Covid-19 Committee established by the Scottish Parliament. This would enable parliamentarians to take a longer-term view and holistically consider the policy behind the legislative response to the emergency. It would also provide a forum for parliamentarians to feed into even extremely fast-moving emergency law-making by government when there is no time to seek advance approval from the full legislature. This Committee should: 

• review government policy, while the technical scrutiny of statutory instruments should continue to be done by the existing designated committees;  

• be chaired by a member of the largest opposition party, and its membership include senior parliamentarians, including some nominated by other relevant select committees; and 

• have expert advisors to help it understand the science surrounding the public health threat. 

Legal certainty 

Legal certainty is a key aspect of the rule of law. For people to understand what the law requires them to do, legal rules must be sufficiently clear, stable and accessible, and should enable people to foresee with reasonable confidence what to do to comply with the law and when they might be sanctioned for not following it. In studies of public compliance with coronavirus restrictions in the UK, legal uncertainty was one of the most common self-reported reasons for people failing to comply with restrictions. Almost a third of the Commission’s recommendations focus on how legal certainty can be improved. 

Some recommendations focus on the drafting of emergency public health laws. The Commission considers that these laws should be kept as simple and as few in number as possible and with titles that make their content clear. If a public health emergency lasts longer than six months, the various laws implementing public health interventions should be consolidated no later than the sixth month and every three months thereafter. The Commission also makes recommendations for improving the communication of emergency public health laws. It recommends that governments provide one central dashboard, updated daily, that sets out in a searchable format (including by geographical area) all the guidance, public health advice, and legislation that is in force and its date of sunsetting. This should be available on an app for mobile devices. Government guidance and other public messaging should clearly explain the rationale behind public health restrictions to make it easier for people to understand the actions they are being asked to take. Governments should also consider as an integral part of policy planning which public health interventions should be given a legal basis, which should only take the form of public health advice, and how that distinction can best be communicated. 

Enforcement 

The Commission recommends that criminal enforcement of emergency public health restrictions should not be assumed to be the default position. In deciding whether measures should be underpinned by criminal law, a careful judgement should be made taking into account the threat level, what the public are being asked to do, and what public sentiment is about compliance and enforcement. The necessity of enforcement and the means by which it is done should continue to be monitored over the course of the emergency response. 

The Commission notes that public health officials are better placed than the police to determine complex matters of judgement in relation to health risk. As public health workforce numbers have declined significantly in recent years, the feasibility of Environmental Health Officers playing a greater role in enforcement should be explored further by central and local government. 

If the police are to be the primary enforcers of future emergency public health restrictions, government contingency planning should involve working with public health officials and police forces’ representational bodies to develop training on enforcement. Additionally, during an emergency governments should ensure that police forces are clearly informed of the wider objectives underpinning public health restrictions, and are given sufficient data to help them assess public health risks in their local area via the well-established multi agency response systems. 

The Commission also makes recommendations as to the use of Fixed Penalty Notices (‘FPNs’), which were the primary means of enforcing coronavirus restrictions. FPNs are notices which offer the person to whom they are issued the chance to avoid prosecution for an offence by paying a financial penalty. If an FPN is unpaid within 28 days, the police can decide to prosecute.  

The Commission received evidence criticising the use of FPNs to enforce coronavirus restrictions. Three main issues were highlighted: the unequal economic impact of FPNs, which impose a fixed fine regardless of people’s income; the very high monetary cost of some FPNs; and the inability for individuals formally to challenge an FPN except by arguing their case before a magistrates’ court and facing criminal conviction if found guilty. The Commission recommends that governments consider whether a formal warning system could be a first-stage alternative to the use of FPNs. If FPNs are to be used in future public health emergencies, the Commission recommends that the level of penalty should ordinarily not exceed a few hundred pounds and there should be a formal appeal mechanism whereby individuals can make representations to the issuing police force. 

Devolution 

The Commission received comments on the difficulties of managing a pandemic in a country with devolved parliaments and governments. Matt Hancock, who was Health Secretary in 2020, considered it was irrational to have ‘three separate regimes across [Great Britain], given that the virus does not respect borders’. The Commission was very much alive to these difficulties and concerns. However, it did not feel able to recommend the use of a legal framework in future public health emergencies – i.e. the Civil Contingencies Act 2004 – that empowers the UK government to make emergency public health regulations for the entire United Kingdom. The devolution of responsibility for health policy and provision is firmly embedded in the UK’s constitutional framework, and the UK now comprises four different health systems with pronounced differences in administration and funding. 

The Commission recommends that different approaches between the four nations should be managed by close intergovernmental cooperation, with an agreed formal basis for cooperation embedded in preparedness planning that facilitates collaboration between ministers, civil servants and senior public health professionals. Consistency between the four nations should be encouraged, unless different approaches are necessitated on the grounds of public health. 

The Commission’s full report can be read on the report’s project page. 

The vital work of the Independent Commission was generously supported by the JRSST Charitable Trust, alongside other funders. 

About the author 

Katie Lines is the Research Leader for the Independent Commission on UK Public Health Emergency Powers with the Bingham Centre for the Rule of Law. 

Featured image is London Lockdown, May 2020 (CC BY-SA 2.0), by ixtlan.