The last few weeks have seen a comprehensive upheaval of the Government’s approach to COVID-19. In addition to a change in the Secretary of State for Health, there has also been a marked change in tone, which has shifted from imploring individuals to ‘follow the rules’, to emphasising ‘personal responsibility’ while committing to the expiry of rules regardless of rising infections.
This post assesses these changes from the perspective of Government accountability for its response to the pandemic, arguing that there is a systemic lack of accountability on the part of the Government for its pandemic response. It further argues that this deficit in accountability will continue and perhaps worsen in the coming months.
The appearance of meaningful accountability
Following the release of now infamous video footage by media outlets showing the former Health Secretary breaking social distancing rules issued by his own Department, Matt Hancock resigned from his post on 26 June. In his resignation letter, Matt Hancock apologised for ‘breaking the guidance’.
To some, a Government Minister resigning in such circumstances may reflect the health of a political system that ensures that the Government is held to account for its actions during the pandemic. In this case, there was a clear instance of a Government official flouting the rules, and that person was subject to scrutiny by the media, the public and politicians in Westminster. This ultimately led to the resignation of that official, despite the Prime Minister having considered the ‘matter closed’ when the video footage first broke.
However, while the resignation of a Government Minister is evidence of the political accountability of individual Ministers, CVRO’s research so far suggests that there is a lack of general Government accountability for its management of the pandemic. We discern this from at least two key features of Westminster politics that have been evident over the last year.
The first feature is the procedural alienation of Parliament from law-making under the pandemic. As has already been the subject of much analysis, the Government’s reliance on passing regulations rather than primary legislation to respond to the pandemic has largely shut Parliament out of key decision-making. While regulations are subject to some form of Parliamentary debate, it is very limited compared to the scrutiny applied to primary legislation. This is because Parliamentarians are not usually able to amend regulations, and have a fraction of the time allocated in relation to primary legislation to discuss them. Indeed, Parliament’s Constitution Committee has described parliamentary oversight of ‘significant policy decisions’ related to the pandemic as having been ‘extremely limited’ (page 2).
A key source of legislative authority for the passing of pandemic-related regulations has been the Coronavirus Act 2020 (CVA), which provided the Government with the power to make regulations in relation to huge decisions, including the creation of new criminal offences, deciding when to shut down borders, and withdrawing crucial social care for vulnerable communities.
The Government’s procedural alienation of Parliament via the CVA extends to undermining Parliament’s few opportunities to review the exercise of the Act’s powers. These opportunities have taken the form of six-monthly reviews of the CVA, as is required by section 92 of the Act. The Government has obstructed meaningful accountability for the operation of CVA regulations in its scheduling of these reviews. The Government scheduled the first review for a mere 90 minutes. It then scheduled the second review alongside a number of other motions which MPs were required to consider at the same time. These included a motion on the ‘Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021’, which were new regulations that would govern the next phase of ‘lockdown’ and introduced among other things extensive restrictions on travelling abroad including creating a criminal offence of merely travelling to a port or airport in anticipation of non-compliant foreign travel. Forcing Parliament to consider such substantial motions at the same time as reviewing the operation of the CVA necessarily limited its ability to apply meaningful scrutiny to the operation of the Government’s regulations passed under the CVA.
The Government has also passed a vast number of regulations under the Public Health (Control of Diseases) Act 1984 (PHA). Such regulations are subject to an urgent procedure, and can be in force for 28 days without Parliament having applied any scrutiny to them. As with regulations passed under the CVA, the regulations passed by the PHA have given effect to substantive decisions as part of the UK’s pandemic response. For example, the PHA regulations, such as the The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021, have been used to introduce nation-wide lockdowns. The Constitution Committee has argued that the use of urgent procedure attached to the PHA to pass regulations has not always been justified (para 60). It cited regulations concerning the wearing of face masks passed as an example of where it was not required but was used nonetheless. In addition to the unnecessary reliance on this procedure, there is also no parliamentary review process built into the PHA framework. This has further side-lined Parliament from scrutiny of such regulations and their impact during the pandemic.
The second key feature suggestive of a systemic lack of accountability relates to the vast evidence that the Government has not adequately protected human rights in responding to the pandemic, but for which the Government has not suffered any serious political consequences. For example, there is now a wealth of evidence that the Government has failed to protect the right to health in its public spending while managing the pandemic. For example, the Health Foundation’s analysis of Office of National Statistics (ONS) data shows that the Government has failed to protect the rights of clinically extremely vulnerable (CEV) people during the pandemic. In particular, the Government appears not to have protected the right to health of CEV people. During the first wave of the pandemic approximately one in three CEV people (31%) who were shielding experienced a reduced level of care for their existing health conditions and one in ten people did not access any care at all.
There is also strong evidence that the Government has not adequately protected the right to non-discrimination in protecting jobs during the pandemic. For example, there is significant data suggesting that groups with protected characteristics have disproportionately suffered from job losses and financial insecurity due to the pandemic. For example, the unemployment rate for BAME people has reached 8.5%, compared to the overall average of 4.9% and the 4.5% average for white workers. According to research from the Women’s Budget Group, 52.1% of women have been furloughed despite women only making up 47.3% of the overall UK workforce. Moreover, those with disabilities have also suffered disproportionate job losses during the pandemic – the disability employment gap has increased from 28.1% to 28.8% over the last year.
There is evidence of many further failures by the Government to protect human rights in its pandemic response, and so far there has been no serious political consequences – such as an official Government review into the human rights impacts of its response – resulting from these failures. Moreover, despite the Joint Committee on Human Rights stating back in September that it was ‘very likely’ that a timely public inquiry was necessary to call in order to fulfil the UK’s obligations under the right to life (page 6), an inquiry is yet to be called and may not begin hearings until autumn 2022 according the Government’s recent announcements.
The Committee stated that such an inquiry must ‘at least’ consider ‘deaths in detention settings; deaths of healthcare and care workers and the availability of PPE; deaths in care homes due to early releases from hospitals; and deaths of transport workers, police and security guards due to inadequate PPE’ (page 6). However, the NAO has already reported a widespread lack of proper record-keeping on the part of the Government with regards to PPE procurement and provision (paras 3.20 – 3.23). Moreover, as was reported this week, the Treasury wiped all data from more than 100 government-issued phones last year, presumably leaving a huge gap in information regarding the Treasury’s activities during the pandemic. This may well obstruct meaningful scrutiny of a number of matters set out by the Joint Committee and, therefore, may well undermine the principal means by which the Government can be held to account for its failures to protect the right to life in responding to COVID-19. There has also been no serious political consequence for this lack of record-keeping on the part of the Government.
The lack of opportunity to meaningfully hold the Government to account for failure to protect human rights represents a further means by which government accountability is lacking with respect to its management of the pandemic, contributing to an overall picture of significant and systemic lack of accountability. The lack of basic accountability for failure to protect fundamental rights such as the right to life suggests significant flaws with the system of accountability.
Conclusion
It is clear that political accountability has been lacking in the pandemic, and there are at least three reasons why this seems unlikely to change in the near future. In the first instance, the Government’s new shift towards individuals exercising ‘personal responsibility’, coinciding with Sajid Javid taking over as Health Secretary, clearly constitutes an attempt to shift responsibility for managing the pandemic from the state to the public. It therefore constitutes a rejection by the Government of accountability for managing the pandemic.
Secondly, this change in direction is occurring at a time when Parliament is due to go on summer recess in a matter of weeks. Summer recess begins on 22 July and continues throughout August until 9 September. Given that this change in direction is occurring at a time when infections are rising and a significant proportion of the population is yet to be vaccinated, the inability of Parliament to properly observe its impact may have particularly serious consequences in terms of holding the Government to account for failures to protect human rights nationwide.
Finally, not only is Parliament due to go into recess soon, but it is under additional pressure due to the Government trying to pass a number of substantial pieces of legislation in recent weeks, some of which have potentially dramatic implications for Government accountability in the long term. These include the Police, Crime and Sentencing Bill, the Health and Care Bill, the Elections Bill, and the Nationality and Borders Bill. The quantity and breadth of this proposed legislation means it is unlikely that Parliament will not have capacity to scrutinise properly the Government’s new approach to responding to the pandemic in the precious time it has left before recess.
Photo credit: Copyright UK Parliament