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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The hybrid House of Commons: the problems of government control

For much of last year, the government resisted MPs’ calls for full reinstatement of virtual participation in House of Commons proceedings. In this post, Daniel Gover and Lisa James review the development of the ‘hybrid Commons’. They argue that full virtual participation, including remote voting, must now be reinstated, and that recent events reveal broader problems of government control over the Commons agenda.

Last spring, the House of Commons adapted quickly and successfully to the challenges presented by COVID-19. The so-called ‘hybrid Commons’ – combining in-person proceedings with simultaneous virtual participation – was one of the first responses of its type globally, and widely praised. But within weeks, the government unilaterally abandoned the virtual element, provoking anger amongst backbench MPs and violating the core parliamentary principle of the equality of all members. It was only on 30 December – well over six months later – that virtual participation in key debates was reinstated, while even now ministers refuse to restore remote electronic voting.

At the start of a new year, the UK’s public health crisis is at least as serious as it was at the beginning of the pandemic, and this will continue to restrict physical participation at Westminster. It is therefore essential that MPs be enabled to participate virtually in as wide a range of Commons proceedings as possible – including in remote divisions. The fact that ministers have been able to block this until now also reveals deeper problems with the House of Commons’ governance, and where power lies, which should urgently be addressed.

The development and collapse of hybrid arrangements

In March and April, consensus between the parties produced rapid adoption of new systems to enable parliament to perform its essential functions. The Commons first authorised its select committees to meet virtually, followed by hybrid arrangements for the Commons chamber itself – initially for ‘scrutiny’ proceedings (questions and statements), followed by ’substantive’ business (motions and bills). Soon after, intensive work began on an electronic voting system, with the first ever online Commons division held in mid-May.

Yet these arrangements began to unravel shortly before the late-May Whitsun recess, barely a week after the first online vote. Despite significant anger from backbench and opposition MPs, ministers refused to facilitate a decision to extend the time-limited orders that had enabled virtual participation in the chamber, and as a result the rules simply lapsed.

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House of Lords Constitution Committee reports on delegated powers

photo_2017_1_cropped (1)tierney2.e1489415384219Last week, the Constitution Committee published its report on the increasing use of delegated powers by the government. Mark Elliott and Stephen Tierney highlight the key concerns raised and proposals made by the Committee in two principal areas: the ways in and extent to which legislative powers are delegated, and scrutiny of such powers’ exercise.

The House of Lords Constitution Committee last week published a major report on delegated powers. It is a component of a larger, four-part inquiry that the Committee is undertaking into the legislative process. The first report in this series, concerning the preparation of legislation for parliament, was published in October 2017; reports on the passage of legislation through parliament and post-legislative scrutiny will be published in due course.

Delegation of power

The Constitution Committee, unsurprisingly, does not begin from the unworldly premise that parliamentary delegations of law-making authority are inherently problematic; after all, they are, and will remain, a fact of life. The Committee does, however, adopt as its premise the position that the legitimacy of such delegations is governed by ‘constitutional standards’ whose enforcement amounts to a ‘constitutional obligation’ on parliament’s part.

The Committee goes on to articulate two key principles by reference to which the legitimacy of delegations of power ought to be judged. First, it is ‘essential that primary legislation is used to legislate for policy and other major objectives’, with delegated legislation used only ‘to fill in the details’. Against this background, the Committee laments the ‘upward trend in the seeking of delegated powers in recent years’. Second, and relatedly, the Committee states that it is ‘constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken’ — a phenomenon in which there has been ‘a significant and unwelcome increase’. Having thus nailed its colours to the mast, the Committee goes on to identify a suite of constitutionally dubious trends and practices to which its attention was drawn during the course of the inquiry and which it has itself discerned in recent years through its constitutional scrutiny of all Bills that reach the House of Lords. Continue reading

The length of modern legislation means that the effectiveness of parliamentary scrutiny is often compromised

In a new report published by the Centre for Policy Studies Daniel Greenberg identifies a number of trends that he argues are reducing the effectiveness of parliamentary scrutiny of legislation. In particular, he suggests that the length of modern legislation is becoming so great that significant parts of bills often receive no detailed scrutiny at all. Here, he summarises his report and suggests action that might be taken to help remedy the situation.

Recent parliamentary practice discloses a number of dangerous legislative trends that threaten the effective protection of the rule of law, by diluting parliament’s power and influence, and concentrating power in the hands of the executive in general and the civil service in particular.

The length of new bills and the number of clauses that they include has become ever greater over recent decades, and the result of portmanteau bills in particular is that even if parliament wanted to scrutinise them effectively it would be unable to do so.  Over the past 50 years, the number of acts passed by governments has stayed approximately the same. However, the average number of clauses included within them has doubled.

It is still common to describe the committee stage of the examination of bills in both Houses as a ‘line-by-line’ scrutiny process; and parliamentarians on all sides of each House commonly refer to it in that way, and often congratulate themselves on scrutinising and refining bills at great length.  The reality, however, is that the committee stage in particular has become diluted to such a degree that it can no longer be described as taking place in a consistent way.

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The policy power of the Westminster parliament: The empirical evidence

Meg-Russell

The UK parliament continues to be dismissed as powerless in many academic and popular accounts. Drawing on a large body of quantitative and qualitative research conducted over more than 15 years, a recent article by Meg Russell and Philip Cowley argued that the Westminster parliament is in fact an institution with significant policy influence. Meg Russell summarises here.

In the study of public policy, legislatures tend to be portrayed as relatively weak institutions. This applies to the UK parliament in particular. The classic comparative view associates the Westminster model, of which the UK is seen as the emblematic case, with centralised executive power and an acquiescent legislature. Assumptions of Westminster’s weakness are not, however, confined to comparative scholars or to the recent past. In a 2011 article Matthew Flinders and Alexandra Kelso traced gloom-laden statements of British parliamentary powerlessness back over a century and more. Meanwhile, a public policy textbook published in 2012 reflected the view of many scholars in the field when stating that ‘Despite the name “parliamentary democracy”, the parliament plays only a limited role in decision-making in the British Westminster model’ (p. 139).

Yet in recent years scholars specialising in the study of the UK parliament have found evidence of significant parliamentary influence on the policy process. This may in part be due to changes in parliamentary structures and behaviour, but also simply result from more exhaustive research approaches. I have contributed to this literature through my work on the House of Lords, and the policy impact of the Westminster parliament. Professor Philip Cowley has also contributed greatly, particularly through his work on the Commons. In a recent article in the journal Governance we drew these various strands together – using four large quantitative data sets, complemented by more than 500 interviews with key parliamentary and government actors – to demonstrate that Westminster’s influence is both substantial and probably rising. We conclude that parliament’s critics make two key mistakes – by concentrating largely on the decision-making stage of the policy process, and focusing almost exclusively on visible parliamentary impact (e.g. government defeats on legislation). We broaden the focus to take into account both visible and less visible impact, with a particular interest in anticipated reactions. Our arguments are summarised in this post.

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