Responding to Covid-19 and the Coronavirus Act 2020

The governance arrangements for responding to COVID-19 have not always been clear. Press reports of a “quad” of Ministers making decisions in April raise questions of a parallel governance structure in addition to the formal Cabinet Committee structure. Such parallel systems risk creating silos where decisions are made without the full and proper discussion, advice or consultation that would be expected in Cabinet Committees. Any review of the Cabinet Office’s response to COVID-19 should include an examination of the governance arrangements for COVID-19, including COBR, the C-19 daily meetings, the “Quad” and Cabinet Committees. The Government must in its response to this report set out the governance arrangements and how decisions were made in response to COVID-19.

The effectiveness of governance arrangements overseen by the Cabinet Office is something that will continue to be of interest to the Committee and form part of its future work programme.

The Government’s messaging on who could continue to work was not as clear as it should have been. The closure of schools and definitions of “key workers” caused some industries to close that could have continued to operate, such as the construction industry. There should have been greater recognition within the Government’s messaging and guidance of workers who kept the economy going during lockdown. The Government must take care to ensure that its messaging is consistent and properly addresses all relevant audiences. (Paragraph 14) The Government’s approach to legislation and the framework for Parliamentary scrutiny

As a result of the timescales involved and the political situation, detailed scrutiny of the Coronavirus Bill was not practical. It is therefore very important that Government is held to account for how it uses and justifies the continued application of the Act. In chapter 4 we set out some points of interest to the House for the first six-month Parliamentary review, particularly in relation to the information that the Government needs to provide to help facilitate effective Parliamentary scrutiny.

The Government’s desire to find alternatives, such as bespoke primary legislation, to using the emergency provisions of the Civil Contingency Act 2004 is understandable. Bespoke primary legislation has the advantage of going through the stages of Parliamentary scrutiny. However, the Committee is not convinced that the Civil Contingencies Act could not have been used for COVID-19 and believes there was a potential role for the Civil Contingencies Act in providing a “stop-gap” for more detailed scrutiny of the Coronavirus Bill to take place.” The potential use of the Civil Contingencies Act as a “stop-gap” should be considered by the Government in response to emergencies in the future. Furthermore, the Coronavirus Act does not have the same safeguards as the Civil Contingencies Act. It is troubling the Paymaster General referred to these safeguards as a reason not to use that Act. Any Parliamentary Scrutiny of the Government’s handling of Covid-19 31 separate legislation to deal with civil contingencies—and particularly legislation that needs to be passed very quickly—should include safeguards and scrutiny provisions that are equivalent to those in the CCA, with regular renewal of powers allowing for more detailed Parliamentary scrutiny that, due to expediency, cannot be given during the passing of emergency legislation.

The Government’s reticence to use the Civil Contingencies Act in response to a genuine national emergency calls into question how fit for purpose that legislation is.

The Committee is concerned by both the scale of legislation and the inability of Parliamentarians to effectively amend COVID-19 legislation. The scale of legislation, covering a large number of statutory instruments made under multiple sources, makes it very difficult for even experts to follow what legislation is in effect. Even more concerning is the fact that Members have no mechanism to amend this legislation which is being made under statutory instrument. All stages of the Bill were taken through the House of Commons in one sitting day. This means Members had just one sitting day to fully influence and amend the Coronavirus Act. Members have no power to amend statutory instruments made under that Act. As we detail below, Members have had no opportunity to meaningfully engage with and amend the lockdown regulations under the Public Health (Control of Diseases) Act 1984.

The current system of Parliamentary scrutiny in relation to lockdown regulations is not satisfactory. The fact that this legislation, which contains stark restrictions on people’s civil liberties, is not amendable by Members, made under the urgent procedure and therefore without parliamentary scrutiny or effective oversight, coupled with the extremely quick passing of the Coronavirus Act means the framework Parliamentary scrutiny of the Government’s handling of COVID-19 is inadequate.

Parliamentary processes and debates help to confer legitimacy upon policy changes made through emergency legislation, particularly when the legislation is so striking in its curtailment of liberties that would normally be taken for granted. Such debates also provide opportunities for parliamentarians to raise problems that exist in the legislation or guidance, be it on their own initiative or things that have been brought to their attention by constituents or by experts. The Committee recommends that the Government gives higher priority to facilitating parliamentary scrutiny of such legislation in future.

The use of the urgent procedure has not always been justified, particularly when the Government has announced that measures will be introduced some weeks in advance. Examples of this are provided by the regulations mandating the use of face coverings on public transport, which were announced on 4 June, introduced on 15 June but not debated until 6 July. It is unclear why the urgent procedure was necessary when the planned legislation was announced over a week before it was to come into force. It is even more unclear why debate was not possible until over a month after their announcement.

In the event the Government believes it is necessary for the urgent procedure to 32 Parliamentary Scrutiny of the Government’s handling of Covid-19 be used to make affirmative statutory instruments, it behoves it, especially with legislation as important to the national interest as lockdown measures, to schedule debates on those regulations in a much more timely fashion than it has so far in relation to COVID-19.

The Committee strongly welcomes the Government’s publication of draft legislation for implementing future local lockdowns similar to those in Greater Manchester or Leicester. This is a welcome improvement in transparency and facilitates parliamentary scrutiny of measures that may need to be introduced urgently in future. At a time when Government resources are understandably stretched, it is potentially beneficial for the Government to partially “outsource” some of the work on such legislation by publishing that legislation in draft. The Government should seek to increase awareness of the existence of this draft legislation among parliamentarians, experts and other interested parties so that as wide a group as possible are able to provide feedback on the draft regulations.

The six-monthly Parliamentary reviews offer an opportunity for the House to debate the relevant temporary provisions within the Coronavirus Act 2020 but they do not allow the House to individually vote on whether specific provisions should continue or be repealed. The six-month reviews, therefore, while important and helpful, should be supported by more regular thematic debates. An example of such a debate could be on social care easements within the Act. The Government should schedule thematic debates on provisions within the Coronavirus Act to provide the House with an opportunity to consider specific provision in greater detail. The motion for debate should be a substantive motion. While this motion would not be legally binding, it would allow for amendments and for the House to express a clear view.

The two-monthly reports on the status of non-devolved provisions, published under section 97, should be an important tool for scrutiny, but as currently structured, the reports do not give enough detail to enable Parliament, experts or the public to do this. The Committee recommends that the Government includes in future reports evidence-based arguments for why the provisions continue to be necessary and quantitative evidence on the impact of using those provisions. If the Government is going to extend the relevant temporary provisions Coronavirus Act after the six- month point, it should consult briefly on what additional information to include in the two-monthly reports and strive to include this as soon as possible. The Committee recommends that the Government includes in future reports evidence- based arguments for why the provisions continue to be necessary and quantitative evidence on the impact of using those provisions. If the Government is going to extend the relevant temporary provisions Coronavirus Act after the six-month point, it should consult briefly on what additional information to include in the two-monthly reports and strive to include this as soon as possible. (Paragraph 64) The use of guidance and rule of law implications

It is prudent of the Government not to seek to legislate for every eventuality, which would lead to a myriad of confusing, flawed and ultimately unenforceable provisions and exceptions. There is, therefore, a clear role for both guidance and legislation in Parliamentary Scrutiny of the Government’s handling of Covid-19 33 response to the COVID-19 pandemic. This point notwithstanding, it is incompatible with the rule of law for the Government to misrepresent what the law actually is at any time. There have been disappointing examples of this misrepresentation during the pandemic, such as describing people in parts of the North of England as being “banned” from doing things that they were not yet banned from at all. Ministerial declarations to the public are not the same as legislation and in a Parliamentary democracy they should not be treated as such. In future the Government should ensure its communications are clear as to whether something is guidance or whether it is a requirement under the law. An example of clearer communication has been over the use of face coverings in shops and public transport.

The Government did not immediately set out the exceptions to the ban on gatherings in private dwellings in parts of the North of England but instead waited until it introduced the legislation. This is particularly strange when the exceptions relating to private dwellings substantially mirrored the relevant exceptions contained within the lockdown regulations for Leicester. Failing to explain the exceptions in good time risks causing confusion and compliance with what were, at that time, voluntary lockdown measures.

The Government’s published draft legislation for implementing future local lockdowns (referred to in Chapter 2 of this report) should mean that it is easier to publish all information immediately when implementing new local lockdowns or relaxing local lockdowns slowly. However, the draft legislation should be viewed as a “living document” and should be updated as other responses are developed. (Paragraph 78) Points of interest for the House for the six-monthly review

The motion under section 98 of the Coronavirus Act 2020 is an “all or nothing” proposition. Under the terms of the motion, either all temporary provisions must be expired or none need to be. The House does not have any power under the Act to order Ministers to expire specific provisions under the Act.

While the House does not have the power to compel Ministers to cause specific temporary provisions under the Coronavirus Act to expire, the powers Ministers have under the Act means that Members of the House can still use the six-monthly reviews to urge the Government to expire or at least suspend particular provisions that do not seem to be necessary at that time.

The resolution of the debate will not affect all coronavirus-related legislation. For example, “lockdown regulations”, are made under the Public Health (Control of Diseases) Act 1984 and would therefore not be legally affected by the six-monthly reviews. The Government should set out clearly before the debate which legislation (and therefore which activities and aspects of the Government’s response to COVID-19) is not part of the Coronavirus Act and will not be affected by the debate and vote.

Paragraphs 74–79 of this report includes evidence relating to specific provisions within the Coronavirus Act that may be of interest to Parliamentarians for the six- 34 Parliamentary Scrutiny of the Government’s handling of Covid-19 monthly review. This includes powers under schedules 21 and 22 of the Act and powers relating to health provision and powers to modify the Mental Health Act.

Not all temporary provisions under the Coronavirus Act 2020 are in force. The Government’s two-monthly reports, on the status of non-devolved provisions, are therefore an important resource for the debate.

The Government should take care to timetable the six-monthly review debate so that the two-monthly status report is published in good time before that debate takes place, ensuring Parliamentarians have the most up-to-date report to inform the debate.

It is vital that the temporary provisions in the Coronavirus Act are properly scrutinised and justified. The six-monthly review debate is one of the main avenues for this scrutiny to take place. To aid effective scrutiny and transparency, it is essential that the Government articulates: the original rationale for the temporary provisions in the Coronavirus Act, why those provisions are still justified and the evidence base for demonstrating those provisions are still effective. This should include provisions that are in force and those that are not. This will improve the transparency of these measures and help determine whether they are still necessary and proportionate. We recommend the Government publish this information in good time for the six-month review. This should be done at least two weeks before that debate takes place. (Paragraph 103) Parliamentary Scrutiny of the Government’s handling of Covid-19 35