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.

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Reliance on secondary legislation has resulted in significant problems: it is time to rethink how such laws are created

The legislative challenges posed by Brexit and the unusual circumstances of the pandemic have led to a significant increase in the use of secondary legislation. The former Head of the Government Legal Department, Jonathan Jones, argues that mass use of statutory instruments is problematic, and that there should be a fundamental rethink of how and when they are used, debated and approved. He calls for a new Statutory Instruments Act to enable this ‘reset’.

Brexit and the pandemic have led to an increase in secondary legislation

Both Brexit and the COVID-19 pandemic have seen the government making increased use of secondary (or subordinate) legislation. This is where ministers make law in the form of (usually) regulations contained in a statutory instrument (SI), under powers conferred by parliament in an earlier Act. It’s ‘secondary legislation’ by distinction with ‘primary legislation’ – Acts of Parliament.

It is easy to see why governments like secondary legislation. The process of making regulations is normally much quicker and easier for ministers than trying to pass a new Act each time.

Well over 600 SIs were made to give effect to Brexit – mainly to make sure that pre-existing EU law ‘worked’ in the UK once we had left the EU. Some of the changes were technical and minor, though others were much more substantial. In addition, ministers have made over 500 SIs to legislate in response to the pandemic – including imposing lockdowns, travel restrictions and the closure of businesses.

There is nothing inherently unconstitutional about this. Secondary legislation is an established part of our system of law-making. It is open to our sovereign parliament to confer whatever powers it wants on ministers, subject to whatever conditions, limitations and procedures it wishes to impose. And ministers are entitled to exercise those powers, subject to review by the courts.

Using regulations to prescribe technical or procedural detail, pursuant to policies and structures set out in Acts of Parliament, is normally unexceptionable and indeed sensible: it avoids parliament being clogged up with unnecessary mundane business. On the other hand, some of the powers conferred on ministers are very wide and go well beyond merely technical or procedural matters. COVID-19 regulations have been used to impose the most intrusive restrictions on all aspects of national life.

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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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