On 10 June 2021, the House of Lords Constitution Committee published its report ‘Covid-19 and the use and scrutiny of emergency powers’. The report focused on the government’s approach to introducing and varying emergency measures to tackle the coronavirus pandemic, including through the issuance of guidance and secondary legislation. The government responded to the report on 16 September 2021.

Baroness Drake (Labour) will lead a debate on the report in the House of Lords on 21 June 2022.

1. Constitution Committee report

1.1 What concerns were raised?

The committee highlighted the government’s extensive use of emergency legislation to introduce new laws and measures during the coronavirus pandemic, including the lockdown and social distancing laws. Although accepting that exceptional measures were often necessary, the committee stressed that the government had “introduced a large volume of new legislation, much of it transforming everyday life and introducing unprecedented restrictions on ordinary activities”. It believed parliamentary oversight of these measures had been limited.

It stated that many of the laws were introduced by secondary legislation and came into operation without prior approval from Parliament (for example, via the made negative or made affirmative process). The committee also expressed concerns about regulations being laid with little notice or regulations being debated after the law had already been changed by subsequent regulations. The committee quoted figures from the Hansard Society that said, by the end of the 2019–21 session, a total of 425 Covid-19 regulations had been laid before Parliament. The Hansard Society has since said that this figure was 582 as at 3 March 2022.

Ongoing issues with short-notice regulations were also flagged up by the House of Lords Secondary Legislation Scrutiny Committee in April 2022. For example, it provided the following data for the 2021–22 session:

A significant proportion of pandemic-related instruments continued to be brought into immediate effect during session 2021–22 even though most pandemic restrictions had been lifted. Of 86 instruments with “coronavirus” in their title:

  • 13 (15%) came into effect before being laid (and one came partially into effect)
  • 22 (26%) came fully into effect and nine (11%) came partially into effect within 48 hours of being laid (down from 35% and up from 5.2% respectively in session 2019–21)
  • 19 (22%) were made affirmatives and came into effect at short notice and before having been debated and approved by Parliament

The Constitution Committee report also noted that the Coronavirus Act 2020 was fast-tracked through Parliament, with all its stages taken over three days, and that the act did not contain some of the most significant powers (for example, the lockdown powers). Instead, it said many of the most significant regulations were made using powers available under the Public Health (Control of Disease) Act 1984. The committee expressed reservations that the Civil Contingencies Act 2004 (CCA 2004) was not used instead, explaining that emergency powers used under this act would have required greater parliamentary scrutiny. However, it did note that the Coronavirus Act itself was subject to a review and a vote every six months in the House of Commons, and had a two-year sunset clause.

Outlining the importance of legislative scrutiny, the committee stated:

The requirement for legislation to be considered by both Houses of Parliament ensures that government policies and actions are examined and tested. This process allows members of the public and interest groups to have their say, through representations to members of both Houses, thus increasing the legitimacy of, and respect for, legislation in wider society. The scrutiny of legislation should also ensure that any legal or policy issues, including drafting errors, can be identified and rectified in advance of the new law taking effect.

When scrutiny is limited through the fast-tracking of legislation, or the extensive use of secondary legislation—which is subject to limited scrutiny when compared with primary legislation—essential checks on executive power are lost, and the quality of the law could suffer.

The committee also expressed concerns over legal clarity for the public. Alongside the issues mentioned above, the committee highlighted problems arising from the law diverging in different parts of the UK (such as different rules in England and in Wales) and some of the measures being set out in guidance. On the latter point, the committee explained:

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 a number of occasions, the law was misrepresented in these public-facing forums. The consequence has been a lack of clarity around which rules are legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance.

1.2 What did the Constitution Committee recommend?

The committee made a number of recommendations aimed at improving the use and scrutiny of emergency measures in the future. These included asking the government to:

  • give Parliament the opportunity to consult on draft versions of any future emergency primary legislation
  • commit to giving Parliament the chance to debate and vote on affirmative instruments issued during a national emergency before they come into force wherever possible
  • where a debate and vote isn’t possible before regulations come into force, to set out the rationale for this and ensure they can be debated within 21 days of coming into force
  • subject emergency regulations to three-month sunset clauses where possible
  • ensure government guidance issued during a public health emergency meets specific conditions (particularly concerning its legal implications) to give people clarity on the law

It also recommended a review of the use and scrutiny of emergency powers. The committee suggested that the review should consider whether the right balance was struck in the government’s approach to emergency legislation during the coronavirus pandemic and whether changes should be made to the CCA 2004 and the Public Health (Control of Disease) Act 1984 to improve the future use of emergency powers.

2. How did the government respond?

The government’s response to the report addressed each of the committee’s recommendations in turn. In particular, regarding the recommendations outlined above, the government stated:

  • it would always endeavour to provide opportunities for pre-legislative scrutiny of legislation and early debates and votes on regulations introduced for emergency situations
  • it believed the information provided in the explanatory memorandums accompanying emergency regulations already adequately explained the rationale for the use of emergency powers, but emphasised its commitment to regular dialogue with parliamentarians to improve scrutiny
  • alternative arrangements were available for reviewing regulations rather than relying on sunset clauses; for example, it stated that review periods were built into many of the coronavirus regulations
  • it would ensure it learns lessons from the use of guidance during the pandemic and that it would be up to departments to strike the balance between law and guidance in each case

Regarding the recommendations about reviewing emergency legislation and the government’s approach to introducing emergency measures, the government stressed that it was “fully committed” to learning lessons from the coronavirus pandemic. It also highlighted the scrutiny the government’s approach had received from parliamentary committees and the National Audit Office, and flagged the recent statutory review of the Civil Contingencies Act 2004. Concluding on this point, it stated:

When considering its response to the pandemic, the government first considered how to use existing powers and was well aware of the requirements for parliamentary scrutiny for use of these powers. It considers the use made to date of these emergency powers to have been appropriate given the imminent and serious threat to public health caused by coronavirus. We appreciate and value the scrutiny role Parliament plays and have tried hard to balance this with the continually changing nature of the pandemic […]

We continue to review the legal framework, including the Public Health (Control of Disease) Act 1984, as well as our standing civil contingency powers. We will draw on lessons learned from this pandemic and balance the need to ensure appropriate parliamentary scrutiny of new regulations with the ability to move quickly and certainly to protect public health.

The government welcomes the reflections of parliamentarians, select committees and other stakeholders on its use of emergency powers when responding to the pandemic and will reflect on any points raised. But we will also need to be mindful that emergency situations, by their nature, demand that the government is able to act with speed and flexibility when responding in the national interest.

The government has committed to running a public inquiry into the handling of the coronavirus pandemic. It published draft terms of reference for the inquiry on 10 March 2022. Regarding governmental powers and decision-making, the terms of reference specified that it would examine:

  • how decisions were made, communicated and implemented
  • intergovernmental decision-making
  • the availability and use of data and evidence
  • legislative and regulatory control

The government also said it would look to identify lessons learned from the pandemic and would use this to inform preparedness for future pandemics and other civil emergencies.

3. Read more

The issue of parliamentary scrutiny, both during the pandemic and beyond, has been raised by a number of other committees. This includes the following reports:

Cover image by Ian Kelsall on Unsplash.