As a new nationwide lockdown comes into effect, Stephen Parkinson and Charlie Roe from our Public Law team, consider the often limited role of Parliament in scrutinising restrictive regulations throughout the COVID-19 pandemic.
Following a majority vote by MPs on Wednesday 4 November 2020 in favour of The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020, a new nationwide lockdown has come into force as of Thursday 5 November 2020. Whilst the full extent of the restrictive measures imposed under the new lockdown regulations differ slightly from those of the original lockdown of 26 March 2020, the tone and character remains the same. That is to say, we are again faced with significant restrictions on our individual liberties.
All too often during the pandemic, the government has introduced highly restrictive measures upon swathes of the population without observing the normal procedures of parliamentary consultation and approval. This is constitutionally problematic in circumventing Parliament as the key legislative body, but is also an example of poor governance which can easily result in bad law. Parliament’s role in providing legislative scrutiny is not simply an inconvenient constitutional formality, but rather an essential part of the legislative process that contributes towards developing coherent and workable legislation.
The government’s approach towards legislating during the pandemic is apparent in the worrying reports from the Times that previous measures to introduce a 10pm curfew on pubs and restaurants were decided on by the Prime Minister and a close cadre of advisors on a Sunday night, without the effects having been modelled by SAGE. This decision was reportedly taken because it was seen as a “good symbolic thing to do”. The Regulations giving effect to that decision were then published at 5:00am on 24 September 2020, that being the day they came into force. Following controversy around this and other decisions the Government gave a commitment to bring any further significant changes to Parliament for consideration, and where possible approval, before they came into force. That is the background to the latest measures in respect of which MPs were given the opportunity to debate and vote before they came into effect.
Ordinary scrutiny of Statutory Instruments
The means and methods by which statutory instruments are subject to scrutiny have been explored in depth in a previous KN blog series here. The three methods of scrutiny are as follows:
- Parliamentary committees
- Parliamentary procedures
- Judicial oversight
Parliament is ordinarily able to provide some limited preliminary scrutiny of new statutory instruments via the work of Parliamentary committees. The main relevant committees are the Delegated Legislation Committee, the Joint Committee on Statutory Instruments and the House of Lords Secondary Legislation Scrutiny Committee.
The Act of Parliament under which a statutory instrument is made will usually specify the formal procedure to be adopted by Parliament to ensure its implementation. The two most common of these are the ‘negative’ and ‘draft affirmative’ procedure. Under the negative procedure, the statutory instrument is signed by the Minister but does not come into effect before a specified date. There is a Parliamentary convention that, where possible, a negative statutory instrument should be laid in Parliament at least 21 days before it comes into effect. Once it has been laid before Parliament, either House can then vote to stop the statutory instrument within a limited period (usually 40 days). If the date by which it is to come into effect has already passed, the statutory instrument will be annulled. Conversely, the affirmative procedure requires the new statutory instrument to be laid before Parliament and approved before becoming law.
Statutory instruments can be challenged in the courts through judicial review. If the challenge is successful, for example if the powers exercised are deemed to exceed that which was conferred to the Minster by the parent Act, the Statutory Instrument can be struck down as unlawful.
Secondary Legislation during the Pandemic
The majority of the more restrictive regulations introduced during the pandemic, such as the restrictions on gatherings, operation of businesses and international travel, have been made under Part 2A of the Public Health (Control of Disease Act) 1984 (“the 1984 Act”). The default rule which applies to regulations made under this Part of the Act is that they are “subject to annulment”, so the negative procedure applies. Domestic health protection regulations made under section 45C of the 1984 Act are required by default to be laid before and approved by Parliament before coming into effect, so the draft affirmative procedure applies.
According to the Hansard Coronavirus Statutory Instrument Dashboard, at the time of writing a total of 200 statutory instruments have been introduced during the pandemic through the negative procedure, of which 130 breached the ’21 day rule’. A further 74 coronavirus related SIs were made subject to the affirmative procedure of which 66, including the latest lockdown measures, were made using the emergency procedures under section 45R of the 1984 Act. This provides that regulations may be made without having first been laid before or approved by Parliament if they contain a declaration from the Secretary of State that this is necessary by reason of urgency. The regulations must then be approved by both Houses of Parliament within a period of 28 days, excluding adjournments, recesses or prorogation, or they will lapse. In practice, this has meant that new regulations have been made and published at very short notice before they come into force.
These statistics point to a significant weakening of parliamentary scrutiny.
The government’s conduct towards legislating throughout the pandemic was heavily criticised during debates in the House of Commons around the renewal of the Coronavirus Act. Sir Lindsay Hoyle, Speaker of the House of Commons, decried the way in which the Government has exercised its powers to make secondary legislation during the pandemic as “totally unsatisfactory”, and described explanations for the failure to lay statutory instruments before Parliament before they came into effect as “unconvincing” and showing “a total disregard for the House”. Faced with this criticism and a growing rebellion among MPs favouring the ‘Brady Amendment’ to the Coronavirus Act which would force the government to consult Parliament before introducing any new English or UK-wide secondary legislation to tackle the pandemic, the government made a concession. Matt Hancock, Secretary of State for Health and Social Care, confirmed on 30 September 2020 that “for significant national measures with effect in the whole of England or UK-wide, we will consult Parliament; wherever possible, we will hold votes before such regulations come into force.”
Legal challenge to Coronavirus Regulations
The original lockdown regulations (the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended)) have been subject to an on-going crowd funded judicial review challenge brought by businessman Simon Dolan. It is claimed that these regulations exceeded the scope of power conferred by Parliament under the 1984 Act and were therefore ultra vires. This view was recently echoed by former Supreme Court Justice Lord Sumption, in his Cambridge Freshfields Law Lecture, where he maintained that “There is no specific power under the Act to confine or control the movements of healthy people”.
In his judgment in that case in the Administrative Court on 6 July 2020, Mr Justice Lewis concluded that claims that the regulations were ultra vires were “unarguable” and refused permission to proceed on all the grounds in issue. However, Lord Justice Hickinbottom subsequently allowed an appeal against that decision and ordered that a hearing before a full court should take place on the basis that the claim raises important issues “concerning the proper spheres of democratically-accountable Ministers of Government”. This hearing for permission to appeal was held on 29 and 30 October 2020 and the judgment has been reserved.
We shall await this judgment with interest.
Notwithstanding the government’s recent commitment to consult Parliament and “wherever possible” hold votes before new regulations come into force, we should be concerned about the consistently casual attitude taken towards the role of Parliament when introducing secondary legislation throughout the pandemic.
As we approach the end of 2020 and the deadline of the Brexit Transition period, when we can expect to see a further avalanche of secondary legislation, questions about the government’s practices tending towards the avoidance of meaningful or effective scrutiny raised throughout the pandemic will remain pertinent.
Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.
About the authors
Stephen Parkinson is Kingsley Napley's Senior Partner. Stephen is a highly experienced and versatile litigator with extensive experience in advising companies, organisations, and individuals caught up in criminal and regulatory investigations or public inquiries. His previous client list has included numerous individuals at the top of their fields, whether in business or politics.
Charlie Roe is a trainee solicitor currently in the Public Law team. Charlie joined Kingsley Napley in September 2019 as a trainee. Prior to joining Kingsley Napley, Charlie worked at a leading London litigation firm as a paralegal in their Personal Injury and Employment departments.
Charlie read History and Politics at Newcastle University. After working in the charity sector he completed the Graduate Diploma in Law and Legal Practice Course at the University of Law, Moorgate.
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