Today the NGO Liberty has published its proposal for a new legislative framework to respond to the COVID-19 pandemic: their Coronavirus (Rights and Support) Bill. They propose that such a Bill would replace the Coronavirus Act 2020, which comes up for renewal at the end of March. While the proposed new Bill is expansive in its scope, covering areas such as immigration, the justice system, and education, it is also notable for its proposal for a clear and robust system of COVID-19 review in Parliament in the form of a Joint Committee on Coronavirus.
The Proposed New Committee
The proposed new Committee is established by s. 9 of the proposed Bill, and its operation and functions are outlined in Schedule 6. That provides that a Joint Committee would be established with six members from the House of Commons and six members from the House of Lords, and would have the following Terms of Reference and Powers:
3 (1) The Committee shall consider and report on— (a) the evidence base for regulations made under the Public Health (Control of Disease) Act 1984, including the necessity and proportionality of such regulations; (b) the exercise by public authorities of powers provided by regulations made under the Public Health (Control of Disease) Act 1984; (c) the equality and human rights impact of the coronavirus pandemic in the United Kingdom (excluding individual cases). (2) A report under subsection (1) must, in particular, include information about — (a) the evidence base for regulations made under the Public Health Act 1984, including the necessity and proportionality of such regulations; (b) the exercise by public authorities of powers provided by regulations made under the Public Health Act 1984; and (c) the equality and human rights impact of the coronavirus pandemic in the United Kingdom (excluding individual cases). (3) The Committee may consider and report on any new primary legislation relating to coronavirus.
The Case for a Specialist Committee
While it is unusual for a committee to be established by statute, it is not without precedent—the Intelligence and Security Committee, for example, has a statutory basis (Part 1, Justice and Security Act 2013). Furthermore, as was the case with the so-called ‘Brexit Committee‘, there is some precedent for establishing time-limited ad hoc committees when Parliament is faced with significant challenges and changes that pose significant complexity but require engaged scouting. Whether established by statute or by standing orders, however, there is a strong case to be made for a specialist committee to consider and report on responses to the COVID-19 pandemic.
It is very clear that the committees in Westminster are engaged in a substantial amount of work on the COVID-19 crisis. As outlined here, we have identified more than fifty ongoing or completed COVID-19-related inquiries across a wide range of committees. However, these committees all have their own remits and foci, and there is a risk of oversight and accountability being fragmented across them and their work. Such fragmentation beings with it the danger that thematic concerns—especially around the impact of the pandemic and responses to it on rights and equality—might fall through the cracks. We have already seen, for example, that one of the most active committees working in this field is the Public Accounts Committee, but that this Committee does not engage directly with the rights-based implications of public expenditure (and especially with questions of the adequacy and appropriateness of resource-related decisions when considered from a human rights perspective), even where these decisions have very explicit implications for rights protection. While the Joint Committee on Human Rights (JCHR) has engaged with the pandemic through two inquiries (inquiry 1, inquiry 2), in the main these have been limited to considering questions of civil and political rights questions and to matters of permissibility (i.e. are government responses permitted under human rights law?) rather than adequacy (i.e. are government responses adequate when seen against the obligation to respect, protect and fulfil rights, including socio-economic rights?). Thus, while there is of course substantial ongoing work by committees there are inadequacies in that work that a committee dedicated to the pandemic and responses thereto, and specifically mandated to consider the evidence base and impacts of responses (including from a rights protection perspective) might be able to address. In this sense such a committee would supplement the work of existing committees, and allow for broader and more comprehensive engagement with rights than is currently in evidence across ongoing and completed inquiries.
Furthermore, a specialist committee focusing on COVID-19 would complement the work of the JCHR by taking into account issues including but going beyond equality and human rights (broader evidence base) and thus allowing for rights-related evidence to be integrated with and weighed alongside other evidence (including public health and fiscal evidence) in order for a broader assessment of proportionality and adequacy to be considered. Such a Committee should, in turn, be able to secure further commitments from Government (e.g. on reporting, evidence sharing etc) that would nudge the Government towards a more integrated approach to outlining its reasoning. Any success in that respect would be very welcome as it would move the Government towards ensuring that human rights concerns are expressly considered alongside other epidemiological, economic, fiscal, and health systems. At present, these latter concerns seem to dominate Government accounts of its decision-making and analysis of necessity and effectiveness with scant (express) attention to rights (see, for example, the approach adopted in the two-monthly reports made under the Coronavirus Act 2020). In addition, by focusing on the pandemic and responses thereto, a specialist committee should be able to compensate for the resource limitations of the JCHR, which of course has a much wider scope than the pandemic and must make workload decisions that may mean it cannot attend to the complex rights-related questions that arise in as full a manner as might be optimal. In addition, once the pandemic has passed and a specialist Committee is wound up, the JCHR would still be in place to do overarching inquiries to the pandemic response and would be supported in that by the reports and work of the specialist committee then available to them.
Conclusion
In proposing a specialist parliamentary committee on Coronavirus, the Liberty Bill has echoes of practices already established in Scotland and Northern Ireland where bespoke COVID-19 committees have been established (Covid-19 Committee (Scotland) | Ad Hoc Committee on the COVID-19 Response (Northern Ireland)). The Scottish committee, in particular, is emerging as a best practice model for effective COVID-19 review, and provides an effective vehicle for gathering information about the lived experiences of the pandemic and responses thereto–including human rights implications–from the government, stakeholders and the wider community. Although there has been substantial parliamentary engagement with COVID-19 in Westminster, the analysis we have so far undertaken of PMQs, committee inquiries, legislative debates, two-monthly reports, and urgent questions shows that Parliament has so far paid scant attention to the questions of human rights compliance and fulfilment.
More than a year on from the beginning of the pandemic, it is very clear that we have moved from an emergency to a protracted public health crisis. Human rights can and should help to shape the response to this, not only by compelling the Government to engage in robust modes of justification for responses that limit our enjoyment of rights, but also by identifying the positive steps that should be taken in order to respect, protect and fulfil the full panoply of rights–including socio-economic rights–in and after the pandemic. Parliamentary engagement with rights is key to making that happen.
A specialist committee dedicated to the response to COVID-19 is a workable and appropriate mode of ensuring and deepening that engagement, and one that would greatly enhance accountability and legitimacy as the pandemic and responses to it continue.
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