Regulating the use of COVID passports in the UK: the need for primary legislation

Talk of ‘COVID passports’ as a means of proving a person’s vaccination status has increased in recent weeks. Ronan Cormacain argues that rule of law concerns necessitate that COVID passports must be created and regulated by primary legislation, which must be given time for proper parliamentary scrutiny. They should not be brought about by secondary legislation, as has been the case with a significant amount of pandemic-related legislation.

The so-called COVID passport is a way of ‘proving’ a person’s COVID status. This blogpost makes three arguments. Firstly, that the use of COVID passports ought to be regulated, secondly that that regulation ought to be by way of legislation, and thirdly that that legislation needs to be an Act of Parliament.

There are many forms such a passport could take: digital or non-digital, domestic only or international, relating to the presence of COVID antibodies or vaccination status, etc. Furthermore, there are many important questions around the content of such a law: the justification of requiring a passport, scope, international recognition, protections, necessity and proportionality, time limits on regulation, etc. This post does not address any of these questions, focusing not on the detail of any law regulating them, instead simply arguing that there should be a law regulating the matter in the UK.

Autonomous moral actors in an unregulated market, or heteronomous rules imposed upon a regulated market

John Locke’s almost mythical conception of a pre-Commonwealth era was of autonomous individuals perfectly free to make their own moral choices. There were no externally imposed rules, and we were all individuals with complete power to determine our own actions. Or as Locke put it: ‘a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other [person]’.

At the time of writing, COVID passports, or more specifically, the right to treat a person in a particular way depending upon whether or not they have a COVID passport, occupies a near Lockean regulation-free space. There is no rule that a publican may refuse entry to a person without a passport, but nor is there a law that specifically prohibits him from doing so. There is no rule that a health worker must only be employed if they have a passport, but nor is there a specific protection for those who don’t have one. Aside from the regulation of travellers to England, Scotland, Wales and Northern Ireland (who must be in possession of a negative COVID test result), this is a law-free zone.

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Who are the ‘unsung heroes’ of Westminster? Results from a survey of MPs staff

Portrait photo of Rebecca McKee

Last year’s outcry about extra funding to assist MPs whose staff were working remotely due to the pandemic demonstrated how little is understood about MPs’ offices and those who work in them. Rebecca McKee presents the first data from her project on MPs’ staff, summarising her findings in response to the question ‘who works for MPs? Much of the data presented here is from a survey of MPs’ staff and more information about the survey can be found on the project webpage.

We know more than ever about our MPs – who they are, what motivates them, and what they say and do in the course of their work. They work hard, and their workload is growing. But this work is supported by just over 3,000 staff, working in offices across the UK, and we know very little about these ‘unsung heroes’, as former Commons Speaker John Bercow called them. They undertake a wide variety of roles: as gatekeepers, controlling access by constituents and interest groups; they are resources, providing research and policy advice; they are channels, linking the constituency to Westminster; and they are providers of essential administrative support. They sit at what has been termed the ‘representational nexus’, as they represent the constituents to the MP and the MP to their constituents.

These individuals have an unusual employment status; they are not public servants in the way that a civil servant is. MPs are responsible for employing their own staff directly and they are able to set the direction of work and the roles of the staff needed to support them, essentially running 650 small businesses. They do so within a framework covering salaries and job descriptions, overseen by the Independent Parliamentary Standards Authority (IPSA). There is no formal hiring process and staff may lack some of the usual employment protections and support systems. Yet these roles can also provide the incumbents with significant benefits. Staff may be able to trade on the valuable experience they have gained and the networks they have become privy to. Some, but not all jobs, can be a stepping stone to a career as a parliamentarian, a political journalist, in a public affairs agency, or other role where knowledge of ‘the inside’ and a demonstrable ability to engage with it counts for a lot.

Yet not everyone can take advantage of these opportunities. The experience of a caseworker in a constituency office will differ from that of a parliamentary researcher in the Westminster office, simply on account of the different work they do, their exposure to Westminster politics and the people they interact with as part of their job.

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The marginalisation of the House of Commons under Covid has been shocking; a year on, parliament’s role must urgently be restored

A year ago today, the House of Commons returned from Easter transformed by Covid. Since then, accountability for far-reaching government policy and spending has often been limited, many MPs have been excluded from key virtual proceedings, and whips now hold over 500 proxy votes. Meg Russell, Ruth Fox, Ronan Cormacain and Joe Tomlinson argue that the combined effect in terms of parliament’s marginalisation has been shocking, and that there are risks of government becoming too comfortable with decision-making which evades proper parliamentary scrutiny. One year on, more robust parliamentary accountability must urgently be restored.

A year ago today, the House of Commons returned to business transformed by Covid. Since March 2020, the public has lived under some of the UK’s most restrictive peacetime laws, and to support the economy public money has been spent on a vast scale. Yet parliamentary accountability for, and control over, these decisions has diminished to a degree that would have been unthinkable prior to the pandemic. One year on, with lockdown easing, the restoration of parliamentary control and functioning is now an urgent priority.

This post highlights five ways in which the government’s approach to the House of Commons during Covid has marginalised MPs. In a parliamentary democracy, government accountability to parliament is a core constitutional principle. But in a national emergency, when time for normal process is short, the gravity of the situation can require that parliamentary scrutiny be temporarily sacrificed in exchange for broader accountability. Yet the government has failed to keep its side of the bargain. Too frequently, announcements have been made at press conferences, or briefed privately to the media, rather than presented for democratic scrutiny and questioning by MPs. Ministers have sought extraordinary powers while consistently excluding both the House of Commons as a whole, and certain MPs, from participating in proper oversight.

In the early days of the pandemic necessity arguably justified this approach. But a year on, a real risk exists of damaging precedents being set. This is magnified by the fact that some recent developments have accelerated negative trends predating the pandemic. Unless MPs collectively take a stand against parliament’s continued marginalisation by ministers, what was once extraordinary risks becoming the norm.

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COVID-19 and Commons procedure: back to the future?

Last week the House of Commons extended the temporary procedural arrangements designed to facilitate business during the pandemic, but did not debate the issue separately, and it is not clear if another opportunity to debate the measures will present itself. Former Clerk of the Commons David Natzler argues here that MPs are entitled to an opportunity to determine all significant aspects of its future procedures before the current arrangements expire.

On Thursday 25 March the House of Commons decided to extend for a further three months its temporary procedural arrangements in response to COVID-19, a year on from the first national lockdown. During that period there have been substantial innovations in the way the House works. Some of these have been controversial, in particular new arrangements for members to take part ‘virtually’ in questions and debates and committees, and new rules on voting, including remote electronic voting. Equally controversial has been the issue of how the decisions to continue, change or terminate these arrangements have been made and who has the power to decide: in other words, who really controls the workings of the House of Commons. Such controversy is not new. The problem was discussed at length in the Unit’s January report Taking Back Control. But the past year has given them new urgency.

The Procedure Committee published a report on 14 March, entitled Back to the Future? Procedure after coronavirus restrictions. Having given an account of developments since the autumn, the committee recommended an extension of the temporary orders until the beginning of stage 4 (currently 21 June), which was agreed by the House on 25 March. But the report also recommends that ‘the House reverts to all aspects of its pre-pandemic practice and procedure’. That reflects an amendment made to the chair’s original draft by most of the Conservative majority on the committee, led by William Wragg – who also chairs the Public Administration and Constitutional Affairs Committee. The same group of members removed a proposal that the committee should mount a further inquiry into the process of making procedural change (see the committee’s Formal Minutes).  

On Thursday 25 March the motion to renew the orders until 21 June was debated as part of a much wider debate on coronavirus regulations and the six-monthly renewal of the Coronavirus Act. The issue of the House’s procedures was naturally overshadowed and there was little reference to them other than in a speech by the chair of the Procedure Committee (see below). There can be no certainty that there will be another chance to consider the arrangements, and every possibility that they will be allowed to lapse on 21 June without further debate or vote. 

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