3rd Report - COVID-19 and the use and scrutiny of emergency powers

The government's response

What the committee recommended 46

1. 1
   All governments should recognise that, however great or sudden an emergency may be, exceptional powers... Conclusion · paragraph 21
2. 2
   The potential use of the Civil Contingencies Act 2004 in response to the pandemic would... Conclusion · paragraph 40
3. 3
   If the Government had used the Civil Contingencies Act 2004 at the outset of the... Conclusion · paragraph 41
4. 4
   If use of the Civil Contingencies 2004 was not considered politically or practically desirable, the... Recommendation · paragraph 42
5. 5
   The uncertainty at the onset of the COVID-19 pandemic, including Parliament’s ability to continue meeting... Conclusion · paragraph 47

See all 46 recommendations and conclusions

Sources

• 3rd Report - COVID-19 and the use and scrutiny of emergency powers ↗The committee's report, parliament.uk
• Government response to the Committee's report on COVID-19 and the use and scrutiny of emergency powers ↗The government's response, 16 September 2021, parliament.uk

Recommendations and conclusions 46

1. 1
   All governments should recognise that, however great or sudden an emergency may be, exceptional powers... Conclusion · paragraph 21 Conclusion (the committee's words)

   All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence. When a government decides to fast-track legislation, it should do so for legitimate and urgent reasons only, limiting parliamentary scrutiny to the extent strictly necessary.
2. 2
   The potential use of the Civil Contingencies Act 2004 in response to the pandemic would... Conclusion · paragraph 40 Conclusion (the committee's words)

   The potential use of the Civil Contingencies Act 2004 in response to the pandemic would not have been a panacea. The Act grants extremely broad delegated powers—much broader than those provided for in the Public Health (Control of Disease) Act 1984. Use of the emergency powers under the 2004 Act would have required the re-making of regulations every 30 days, meaning that regulations would, in practice, likely have needed to be scrutinised in rapid succession or in large quantities. Nonetheless, Parliament would have been more involved in the legislative process, including the ability to amend regulations.
3. 3
   If the Government had used the Civil Contingencies Act 2004 at the outset of the... Conclusion · paragraph 41 Conclusion (the committee's words)

   If the Government had used the Civil Contingencies Act 2004 at the outset of the pandemic, even if only as a temporary measure while alternative primary legislation was passed, parliamentary oversight could have been improved. The 2004 Act shows that Parliament can have, and expects to have, a central role in legal changes during periods of national crisis.
4. 4
   If use of the Civil Contingencies 2004 was not considered politically or practically desirable, the... Recommendation · paragraph 42 Recommendation (the committee's words)

   If use of the Civil Contingencies 2004 was not considered politically or practically desirable, the Government should have voluntarily subjected itself to comparable parliamentary scrutiny safeguards in all pandemic-related legislation.
5. 5
   The uncertainty at the onset of the COVID-19 pandemic, including Parliament’s ability to continue meeting... Conclusion · paragraph 47 Conclusion (the committee's words)

   The uncertainty at the onset of the COVID-19 pandemic, including Parliament’s ability to continue meeting in some form, led the Government to fast-track the passage of the Coronavirus Act 2020. While the use of the fast-tracking procedure may have been justified in those circumstances, it seriously curtailed parliamentary scrutiny of important and wide-ranging legislation.
6. 6
   We recommend that Parliament be consulted on any future draft legislation prepared on a contingency... Recommendation · paragraph 48 Recommendation (the committee's words)

   We recommend that Parliament be consulted on any future draft legislation prepared on a contingency basis to address a potential emergency, ensuring that it provides for sufficient parliamentary scrutiny. The pre-legislative scrutiny of what became the Civil Contingencies Act 2004 provides a clear model for such an approach.
7. 7
   When parliamentary democracy is operating as it should, significant policy decisions should be enacted in... Conclusion · paragraph 55 Conclusion (the committee's words)

   When parliamentary democracy is operating as it should, significant policy decisions should be enacted in primary legislation subject to full scrutiny by Parliament. The Government chose not to include a general lockdown power in the Coronavirus Act 2020. Had it done so, parliamentary oversight of the use of lockdowns in England in response to the COVID-19 pandemic would have been improved. A COVID-specific lockdown power might also have enhanced legal clarity and public awareness of the law.
8. 8
   The Government instead relied upon the Public Health (Control of Disease) 1984 Act, as amended... Conclusion · paragraph 56 Conclusion (the committee's words)

   The Government instead relied upon the Public Health (Control of Disease) 1984 Act, as amended in 2008, to introduce lockdowns in England. This has underlined the importance of affording Parliament adequate opportunities to scrutinise and debate regulations introduced under the 1984 Act.
9. 9
   Relying upon Part 2A of the Public Health (Control of Disease) Act 1984 as the... Conclusion · paragraph 63 Conclusion (the committee's words)

   Relying upon Part 2A of the Public Health (Control of Disease) Act 1984 as the primary basis for England’s response to the COVID-19 pandemic has restricted the Government’s accountability to Parliament for the significant policy decisions and extraordinary restrictions on civil liberties made since March 2020. The use of the urgent procedure has significantly constrained parliamentary scrutiny, and its use has not always been justified. We acknowledge the unprecedented nature of the COVID-19 pandemic. However, in many cases the Government’s need to rely upon the urgency procedure has been exacerbated by poor planning, including drafting delays and a failure to adequately take account of established scrutiny processes and timeframes.
10. 10
    We recommend that the Government sets out the rationale for using the urgent procedure under... Recommendation · paragraph 64 Recommendation (the committee's words)

    We recommend that the Government sets out the rationale for using the urgent procedure under the Public Health (Control of Disease) Act 1984 in the explanatory memorandum accompanying an instrument made using that procedure. This should explain why the particular measures in the instrument need to be made urgently. Poor government planning does not justify use of the urgent procedure under the 1984 Act.
11. 11
    We recommend that there should be a presumption in favour of using sunset provisions in... Recommendation Recommendation (the committee's words)

    We recommend that there should be a presumption in favour of using sunset provisions in all regulations made under the Public Health (Control of Disease) Act
12. 12
    The Government’s extensive use of delegated legislation in response to the pandemic has undermined parliamentary... Conclusion · paragraph 80 Conclusion (the committee's words)

    The Government’s extensive use of delegated legislation in response to the pandemic has undermined parliamentary scrutiny. Although there were circumstances where the urgency of the situation required the use of made affirmative procedures, their use was not always justified.
13. 13
    While we understand that urgent action may be required in response to a public health... Conclusion · paragraph 81 Conclusion (the committee's words)

    While we understand that urgent action may be required in response to a public health crisis, parliamentary scrutiny is an important constitutional check on the exercise of arbitrary power by the executive. The increase in the use of made affirmative instruments by the Government in response to the COVID-19 pandemic must not become the norm.
14. 14
    We recommend that there should be a presumption in favour of using sunset provisions in... Recommendation · paragraph 82 Recommendation (the committee's words)

    We recommend that there should be a presumption in favour of using sunset provisions in all regulations introduced during a national emergency. They should expire after three months unless renewed by a resolution of both Houses.
15. 15
    We recommend the Government adopt, at a minimum, the following safeguards in respect of all... Recommendation · paragraph 83 Recommendation (the committee's words)

    We recommend the Government adopt, at a minimum, the following safeguards in respect of all affirmative instruments introduced during a national emergency: a) The Government should commit to holding a debate and vote on regulations before coming into force wherever possible. (b) Where this is not possible: (i) The Government should set out in the explanatory memorandum accompanying an instrument why it considers it necessary for the regulations to come into force before a parliamentary debate; and (ii) The Government should commit to holding a debate and vote on regulations within 21 days of regulations coming into force.
16. 16
    We welcome the collaborative approach adopted by the UK Government and the devolved administrations in... Conclusion · paragraph 98 Conclusion (the committee's words)

    We welcome the collaborative approach adopted by the UK Government and the devolved administrations in the early stages of the pandemic. This period demonstrates that all parts of the UK are capable of working together effectively in a crisis, saving lives and sharing information.
17. 17
    We welcome the close coordination which took place between the UK Government and the devolved... Conclusion · paragraph 99 Conclusion (the committee's words)

    We welcome the close coordination which took place between the UK Government and the devolved administrations in developing and agreeing the Coronavirus Act 2020. While the Civil Contingencies Act 2004 would have allowed the UK Government to adopt a more centralised response to COVID-19, Schedules 18 and 19 to the 2020 Act instead enabled the Scottish Government and the Northern Ireland Executive to determine their own response to the pandemic. This approach respected the devolution arrangements.
18. 18
    A cooperative UK-wide approach is essential to tackle the spread of COVID-19. Conclusion · paragraph 117 Conclusion (the committee's words)

    A cooperative UK-wide approach is essential to tackle the spread of COVID-19. We are concerned that, since May 2020, intergovernmental communication and cooperation appears to have decreased significantly. Legal divergence between the four parts of the UK has also increased, occasionally accidentally. This has created practical difficulties for members of the public, particularly those living and working close to internal UK borders, as well as those seeking to travel abroad.
19. 19
    Intergovernmental relations are integral to the UK’s system of government. Conclusion · paragraph 118 Conclusion (the committee's words)

    Intergovernmental relations are integral to the UK’s system of government. We regret that relations between the UK Government and the devolved administrations have been strained during the response to the shared challenges of the pandemic. We will consider this matter further in our inquiry on the future governance of the UK.
20. 20
    We regret that relations between the UK Government and parts of local government in England... Conclusion · paragraph 122 Conclusion (the committee's words)

    We regret that relations between the UK Government and parts of local government in England have not been stronger in the response to COVID-19. We will consider this matter further in our inquiry on the future governance of the UK.
21. 21
    Legal changes introduced in response to the pandemic were often set out in guidance, or... Conclusion · paragraph 153 Conclusion (the committee's words)

    Legal changes introduced in response to the pandemic were often set out in guidance, or announced in media conferences, before Parliament had an opportunity to scrutinise them. On occasion, the law was misrepresented in these forums.
22. 22
    When people are unable to understand what the rules are, they cannot hope to follow... Conclusion · paragraph 154 Conclusion (the committee's words)

    When people are unable to understand what the rules are, they cannot hope to follow them. Members of the public are entitled to know, and to be correctly advised on, what is legally required of them and what, in the Government’s view, it is socially responsible for them to do.
23. 23
    The Government’s use of guidance and statements to the media have in some instances undermined... Conclusion · paragraph 155 Conclusion (the committee's words)

    The Government’s use of guidance and statements to the media have in some instances undermined legal certainty by laying claim to legal requirements that do not exist. The Government does not have, and must not assume, authority to mandate public behaviour other than as required by law.
24. 24
    The consequence has been a lack of clarity on which rules are legally enforceable, posing... Conclusion · paragraph 156 Conclusion (the committee's words)

    The consequence has been a lack of clarity on which rules are legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance and confidence.
25. 25
    Guidance and media statements are not legislation and should not be presented or treated as... Conclusion · paragraph 165 Conclusion (the committee's words)

    Guidance and media statements are not legislation and should not be presented or treated as such. When used appropriately, however, communication through such methods can enhance access to the law by simplifying legal complexity in a format that is easy for people to digest.
26. 26
    We strongly recommend that all Government guidance during a public health emergency conform to the... Conclusion · paragraph 166 Conclusion (the committee's words)

    We strongly recommend that all Government guidance during a public health emergency conform to the following essential conditions to enable people accurately to understand the law: (a) Guidance should clearly distinguish information about the law from public health advice. It should not suggest that instructions are based on law when they are not. (b) Where guidance provides information about the law, this should be accurate and complete. Where the law is too complex to be set out in full, guidance should make clear that the account is partial. (c) All relevant legal instruments should be identified wherever legal requirements are referred to in guidance, accompanied by up-to-date hyperlinks to the underlying regulations on legislation.gov.uk. d) Guidance should make clear when opinions are being offered about the interpretation of the law, including a clear statement of the source and status of such opinions. (e) A consistent approach to use of the terms “advice”, “guidance”, “ recommendation”, “rules” and “restrictions” should be adopted in all Government publications and public statements, in each case making clear whether the term is referring to obligations required by law, or to public health advice.
27. 27
    We recommend that the Government ensures that every statement of Government guidance (including every amendment... Recommendation · paragraph 167 Recommendation (the committee's words)

    We recommend that the Government ensures that every statement of Government guidance (including every amendment and replacement text) is separately published (and later archived) in a publicly accessible format. This will make it possible to identify the guidance that applied at any given time and enable each statement of guidance to be compared to the legislation in force at the relevant time.
28. 28
    A lack of advance notice of legislation has undermined parliamentary scrutiny, transparency and accessibility of... Conclusion · paragraph 175 Conclusion (the committee's words)

    A lack of advance notice of legislation has undermined parliamentary scrutiny, transparency and accessibility of the law.
29. 29
    We acknowledge that there have been a number of occasions throughout the COVID-19 pandemic where... Conclusion · paragraph 176 Conclusion (the committee's words)

    We acknowledge that there have been a number of occasions throughout the COVID-19 pandemic where legislative measures have been urgently required to limit the spread of infection. That does not, however, justify the publication of significant measures hours—and in some case minutes—before taking effect.
30. 30
    There have been a number of occasions where apparently non-urgent measures have been published at... Conclusion · paragraph 177 Conclusion (the committee's words)

    There have been a number of occasions where apparently non-urgent measures have been published at the very last minute. On other occasions measures that have introduced significant restrictions on civil liberties, including criminalising everyday activity, have been announced minutes before coming into force. We note, in particular: The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 eased lockdown measures. To the extent that new public health measures were introduced, they were less restrictive than pre-existing restrictions. The regulations were nonetheless published less than 24 hours before taking effect. The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020, which introduced Tier 4 restrictions in London and the south east of England shortly before Christmas 2020, were almost identical to the regulations giving effect to the March and November 2020 lockdowns.
31. 31
    In other cases, the urgency appears to have resulted from a lack of planning and... Conclusion · paragraph 178 Conclusion (the committee's words)

    In other cases, the urgency appears to have resulted from a lack of planning and preparedness by the Government. For example, the Government first advised the public to wear face masks on 11 May 2020. Face coverings then became mandatory in different public places under various sets of regulations made on 15 June, 24 July, 8 and 22 August. In each case, the regulations came into force shortly after publication. Poor Government planning does not justify the publication of regulations at the very last minute.
32. 32
    The National Archives have ensured that all coronavirus amendments are shown in the principal regulations... Conclusion · paragraph 185 Conclusion (the committee's words)

    The National Archives have ensured that all coronavirus amendments are shown in the principal regulations on legislation.gov within 24 hours of laying. We welcome these efforts to enhance access to the law.
33. 33
    It is incumbent upon the Government to make the law clear. Recommendation · paragraph 186 Recommendation (the committee's words)

    It is incumbent upon the Government to make the law clear. When enacting new COVID-19 restrictions, the Government should be guided by the principles of certainty, clarity and transparency, and seek to avoid rapid and last-minute changes to the law as far as possible.
34. 34
    We recommend that the Government adopts alternative drafting practices to make the mass of COVID-19... Recommendation · paragraph 187 Recommendation (the committee's words)

    We recommend that the Government adopts alternative drafting practices to make the mass of COVID-19 regulations more accessible for members of the public and lawyers alike. For every set of amending regulations made, the Government should set out in the explanatory memorandum: (i) the regulations that are being amended; (ii ) the substance of the amendments being made; and (iii) the reason for those amendments.
35. 35
    We recommend that, whenever amending regulations are made, the Government publishes an accompanying Keeling Schedule... Recommendation · paragraph 188 Recommendation (the committee's words)

    We recommend that, whenever amending regulations are made, the Government publishes an accompanying Keeling Schedule setting out the new legislation in full and indicating all the amendments that have been made. This would not have the status of legislation but should be published on legislation.gov.uk alongside the original instrument to facilitate public access and understanding of the changes that have been made to the underlying legislation. This approach would enable members of the public and lawyers to identify present and past law with greater ease.
36. 36
    A lack of notice of new measures, combined with repeated amendment and revocation of secondary... Conclusion · paragraph 197 Conclusion (the committee's words)

    A lack of notice of new measures, combined with repeated amendment and revocation of secondary legislation, has made it difficult for public authorities to prepare for, and advise their residents about, changes to the law. This has made it all the more important for guidance and ministerial statements to reflect accurately the true legal position, yet this has regrettably not always been so.
37. 37
    The UK Government has failed to make it clear when announcements only extend to England. Conclusion · paragraph 202 Conclusion (the committee's words)

    The UK Government has failed to make it clear when announcements only extend to England. This has caused unacceptable and unnecessary confusion for members of the public throughout the UK.
38. 38
    We recommend that all future ministerial statements and Government guidance on changes to COVID-19 restrictions... Recommendation · paragraph 203 Recommendation (the committee's words)

    We recommend that all future ministerial statements and Government guidance on changes to COVID-19 restrictions clearly state the geographic extent of the new requirements.
39. 39
    We welcome the Prime Minister’s announcement of an independent public inquiry into the Government’s handling... Conclusion · paragraph 207 Conclusion (the committee's words)

    We welcome the Prime Minister’s announcement of an independent public inquiry into the Government’s handling of the COVID-19 pandemic. We also welcome the Government’s commitment to consulting the devolved administrations before finalising the terms of reference for this inquiry. It is essential that the UK Government and the devolved administrations work together to learn from this pandemic and prepare for any future emergencies.
40. 40
    The public inquiry is currently due to commence in spring 2022 and may take a... Conclusion · paragraph 208 Conclusion (the committee's words)

    The public inquiry is currently due to commence in spring 2022 and may take a number of years to issue its final report. An examination of the use and scrutiny of emergency powers during the pandemic should not await this timescale.
41. 41
    We recommend that a review of the use of emergency powers by the Government, and... Recommendation · paragraph 209 Recommendation (the committee's words)

    We recommend that a review of the use of emergency powers by the Government, and the scrutiny of those powers by Parliament, should take place in advance of the public inquiry. We believe this review could be completed in time to inform the public inquiry and planning for any future emergencies.
42. 42
    The approach adopted in response to the pandemic must not be used to justify weakened... Conclusion · paragraph 210 Conclusion (the committee's words)

    The approach adopted in response to the pandemic must not be used to justify weakened parliamentary scrutiny of Government action in response to any future emergencies.
43. 43
    Section 21(5) of the Civil Contingencies Act 2004 appears to present a legal and practical... Recommendation · paragraph 215 Recommendation (the committee's words)

    Section 21(5) of the Civil Contingencies Act 2004 appears to present a legal and practical barrier to use of that Act during an emergency. We recommend that section 21(5) of the Civil Contingencies Act 2004 be reconsidered as part of the review of emergency powers.
44. 44
    We recommend that the review of emergency legislation consider the use of the Coronavirus Act... Recommendation · paragraph 216 Recommendation (the committee's words)

    We recommend that the review of emergency legislation consider the use of the Coronavirus Act 2020 and Part 2A of the Public Health (Control of Disease) Act 1984, including whether the correct balance was struck between the restrictions on civil liberties and parliamentary scrutiny, and the Government’s ability to respond adequately to the COVID-19 pandemic.
45. 45
    The review should inform the development of any future bespoke emergency powers, including any amendments... Conclusion · paragraph 217 Conclusion (the committee's words)

    The review should inform the development of any future bespoke emergency powers, including any amendments to the Public Health (Control of Disease) Act 1984 and Civil Contingencies Act 2004 that may be considered necessary. This could include amendments to the urgent procedure in the 1984 Act and requiring the use of sunset clauses in the regulations made under that Act.
46. 46
    The delegation of powers and use of delegated legislation during the COVID-19 pandemic has exacerbated... Conclusion · paragraph 220 Conclusion (the committee's words)

    The delegation of powers and use of delegated legislation during the COVID-19 pandemic has exacerbated long-standing issues. We will continue to keep this area under review.