Good Practice in COVID-19 Review: Lessons from Scotland and Wales

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Introduction

Research conducted by the CVRO one year on since the pandemic started, suggests that the Westminster Parliament has insufficiently engaged with human rights and equality considerations in respect of the pandemic, whether in PMQs or parliamentary debates. In terms of COVID-19 related committee inquiries, out of 61 inquiries launched since the beginning of the pandemic, only two Joint Committee on Human Rights’ inquiries mention human rights in their terms of references. Nevertheless, arguably the focus of these two inquiries is primarily on civil and political rights, with little attention to socio-economic rights and non-incorporated treaties. The Women and Equalities Committee has launched three inquiries with clear human rights implications, but lacking in human rights framing.

In sharp contrast, select committees at the devolved legislatures are showing leadership in employing human rights and equality as points in evaluative parliamentary review of pandemic responses, promoting governments’ engagement with these considerations in pandemic decision-making. This post outlines inquiries conducted by the Scottish Equalities and Human Rights Committee and the Welsh Equality, Local Government and Communities Committee, which demonstrate good practices of political engagement with human rights and equality considerations in parliamentary review of COVID-19 measures. From both a substantive and procedural point of view, these two inquiries reflect the five core principles of COVID-19 review set out by the CVRO: rights framing (section II), participation (section III); evidence-based analysis (section IV), and independence from the executive and capacity to influence government’s decision making (section V).

Rights-framing of the inquiries

In April 2020, the Scottish Equalities and Human Rights Committee (hereafter, “the Scottish Committee”) and the Welsh Equality, Local Government and Communities Committee (hereafter, “the Welsh Committee”) launched inquiries to scrutinise their governments’ responses to the pandemic. Both inquiries were clearly framed in human rights and equality terms.

The Scottish Committee inquiry was entitled What groups and individuals in Scotland are disproportionately impacted by Coronavirus (Covid-19)? The inquiry had three main parts: (i) to identify  disproportionately affected groups, (ii) to identify what actions should be undertaken to address the negative impact of the pandemic on equality and human rights, and (iii) to scrutinise the government’s response to the pandemic and its impact on equality and human rights.

By framing the inquiry in these terms, the Scottish Committee was able to gather significant evidence about the relationship between inequality, rights and the pandemic, which informed its scrutiny work and recommendations. The framing also reflects the Committee’s broad conception of the role of human rights and equality assessments in the political sphere, and particularly that Government and public bodies must incorporate these considerations as an integral part of policy- and decision-making. Finally, the framing is consistent with a multi-faceted understanding of the relationship between rights and the State, suggesting that rights perform various roles in shaping the emergency response: they compel positive state action, impose limits, and serve as substantive principles to hold the government to account.

The Welsh Committee’s inquiry is entitled COVID-19 and its impact on matters relating to the Equality, Local Government and Communities Committee’s remit. This includes housing, equalities, poverty and human rights. Significantly, the consultation letter outlined that the committee had a special interest in “specific or unequal impacts on people because of their gender, age, disability, ethnicity, socio-economic or other status”, in particular, ‘BAME’* communities. Furthermore, the letter highlighted the committee’s interest in

“the experiences of particularly vulnerable groups such as homeless people, low income households, renters, migrants, refugees, asylum seekers, pregnant women and people at risk from domestic abuse and sexual violence.”

This clear equality framing and focus on marginalised groups is not the only feature worth noting about the Welsh Committee’s approach. As its scrutiny work developed, the committee was able to target specific and pressing issues arising from the evidence. After the summer recess, the Committee issued a new consultation letter on “the impact of the pandemic in the voluntary sector”, which had experienced significant disruption in their activities, not least due to lack of funding, but which perform an essential role in assisting marginalised persons in Wales.

In sum, unlike Westminster committees’ inquiries, the Welsh and Scottish committees’ inquiries are clearly framed in rights language. Whilst the Scottish Committee provides a more fine-grained approach, the Welsh Committee’s drafting is commendable for putting disadvantaged groups at the heart of its inquiry.

Consultation and participation mechanisms

Significant lessons can be drawn from the Scottish and Welsh Committees’ approach to consultation. In both cases there is a clear effort to set up flexible rules in terms of timing and channels of participation, to facilitate citizens in sharing their views and experiences with these committees. Given this, perhaps it does not come as a surprise that these inquiries gathered a vast body of evidence.

Firstly, in terms of timing, both inquiries were “open-ended”. Eventually, the Scottish Committee kept its call opened until the 1 January 2021, although it welcomed any submissions on matters of urgency, or other longer-term issues. Currently, the committee is in campaign recess. The Welsh Committee, on the other hand, has closed its inquiry due to the forthcoming Easter recess of the Senedd.

Secondly, both committees chose “informal” communication channels to gather views. The Welsh Committee encouraged citizens to submit their views by email. Interestingly, the consultation letter sets the committee’s expectations by noting that they do not expect detailed or lengthy evidence, and “a short email about your views on, and experiences of, the impact of the pandemic” would suffice.

The Scottish Committee’s approach deserves particular attention. The Scottish Parliament has a remarkable online infrastructure (Citizens Space) which hosts and collates all parliamentary inquiries, and provides a platform for evidence submission and publication processes. In this platform, the Scottish Committee had a dedicated webpage which contained an overview of the inquiry, some background information and guidance on how to submit views. By contrast to the Welsh Committee, clear guidance on how to respond was provided in an online “submission form”, containing a set of five questions on the three main themes of this inquiry.

A couple of additional points are worth making regarding the Scottish Committee. Firstly, a remarkable feature in terms of accessibility, not least since it is widely recognised that the pandemic has disproportionately affected ethnic minorities, was the committee’s decision to welcome views written “in any language”. Secondly, that in order to provides a good source of information for those members of the public willing to engage with the Scottish Committee’s inquiry in a more knowledgeable way, the call for evidence contained a link to a blog on “Coronavirus (COVID-19) and Human Rights”, prepared by the Scottish Parliament Information Centre (SPICe, the internal parliamentary research service). This blog sets out in clear and accessible language, for a non-specialist audience, the relevant human rights law obligations, a brief description of the most salient emergency measures adopted, an account of the Scottish Human Rights Commission’s take on these measures, and a brief explanation of how these measures would be subject to scrutiny.

The steps undertaken by the Welsh and the Scottish Committees described above had a clear aim, namely, making parliamentary procedures accessible to the widest audience possible. Both committees gathered a significant body of evidence from established institutions championing the rights of those under-represented in political decision-making. However, only the Scottish Committee succeeded in collecting evidence from ordinary people, thus throwing into sharp relief the role that Citizens Space is performing in terms of participatory democracy in Scotland.

Evidence-based scrutiny

There is a clear correlation between the timing and framing of the call, on the one hand, and the capacity of select committees to collect a significant body of evidence, on the other. Thus, the flexible rules described above were fruitful in securing a strong and diverse body of data for the Welsh and the Scottish Committees. This, in turn, had a positive impact on the quality of their reports, both in terms of identifying critical issues, providing a narrative based on the evidence, and providing justification for their recommendations.

The Scottish Committee published a total of 168 responses to their consultation. Whilst most of respondents employed the online “submission form” (see for instance here and here), others –mainly organizations such as the Scottish Human Rights Commission and UNISON Scotland– submitted a bespoke pdf or word document. The sheer volume of evidence presented a challenge to committee members as parliamentary time is a scarce resource. To address this, the clerks prepared from time to time an “Abstract of Responses”, which contained a briefing and analysis of the views gathered for a given period for the Committee (see examples here and here).

In addition, the committee held eight oral evidence sessions with some 30 people giving oral evidence, including Ministers and civil servants, the Scottish Human Rights Commission, academics and various organisations such as the Royal College of Psychiatrist, The Coalition of Careers in Scotland, the Royal College of Speech and Language Therapist, Age Scotland.[1] By engaging with a variety of stakeholders, the Scottish Committee gathered a wide range of views, including from groups that tend to be underrepresented in political fora, such as Gypsy, Traveller and Roma communities, blind people, people who experience challenges with communication, and others.

The Welsh Committee was also quite successful in terms of gathering evidence. 25 organizations, including third sector organisations advancing the rights of women and ethnic minorities, the Equality and Human Rights Commission, the British Red Cross, the National Lottery Community Fund, the Royal National Institute for Blind People and the Royal College of General Practitioners.

The Welsh Committee also held ten oral evidence sessions with some 50 people, including Ministers, civil servants, politicians, the Equality and Human Rights Commission of Wales and representatives of various organisations giving evidence. Interestingly, the Welsh Committee organised thematic evidence sessions on marginalised groups of people and their experiences of the pandemic. These sessions covered violence against women, the voluntary sector, and the experiences of older people, low-income households, disabled people, homeless people, and BAME* communities.

Finally, both reports represent an exercise in evidence-based review of COVID-19 measures. The reports draw heavily on the data and evidence gathered. The evidence enabled both committees to identify a set of key issues. The reports contain a systematic presentation of evidence, and a notable effort to bring together disparate, relevant forms and pieces of evidence. The concrete recommendations made in these reports emerge in response to the problems identified on the evidence presented.

The Welsh Committee published two reports, in August 2020 and February 2021 (see here and here). For the purposes of this piece the first report is quite significant, as it has a clear focus on inequality and the disproportionate impact of the pandemic on particular groups of people. The report notes the role of pre-existing inequalities in the uneven distribution of pandemic effects and stresses the need for consultation with those most affected. The report makes 44 recommendations ranging from short to medium term actions to make a post-COVID Wales a fairer country, to recommendations on improving the quality of the data regarding protected characteristics, internal procedures, and the monitoring of ongoing issues.

The Scottish Committee published its report on 2 March 2021. The report draws from 11 months of its ongoing inquiry. It contains twelve concrete recommendations which range from issues that have been widely discussed, such as social care, mental health and economic relief packages, to issues that are less prominent in the political debates on COVID. Among the latter, are recommendations concerning asylum seekers and refugees, Gypsy, Traveller and Roma communities, incarcerated persons, people with “no recourse to public funds”, people experiencing digital inclusion problems, show people, and LGBT+ communities. Notably, where it did not gather enough data and information to make a recommendation, the Committee lists a number of follow up areas of concern.

Contributing to political accountability

The final criteria are independence and capacity to exert influence on the government, both with clear implications for political accountability. Here, the experiences of the Scottish and Welsh Committees converge in some aspects, and diverge in others.

In terms of independence, both reports are reflective of quite consensual and non-partisan operation: no dissenting views are recorded, and their drafting is evidence driven, rather than political in tone. Another signal of independence is the committees’ willingness to criticise the government. The Welsh Committee criticised the government for not publishing impact assessments at early stages of the pandemic decision-making,[2] and for later applying impact assessment expectations to new measures only without catching up on those measures still in force that had been enacted without an impact assessment. The Scottish Committee was much more critical, and concluded that engagement with equality and human rights standards presents “at best (…) a mixed picture of compliance, and at worst, wholesale disregard”.[3]

In terms of their capacity to influence the Government, there are stark differences. The Scottish Committee’s report was published some 20 days before parliamentary recess, and likely as a result of this no government response has been published so far. In its recently published Legacy Report, the committee comes back to some of the most pressing issues arising from the report, and recommends that its successor committee “prioritise these scrutiny areas.” It remains to be seen what the response of the incoming Government and Parliament will be.

In sharp contrast, the Welsh government responded to both of the Welsh Committee’s reports (see here and here). These responses address each recommendation individually. The government’s responses clearly state whether it accepts the recommendations in full or in part, and provides reasons in support. The Welsh Government is responsive, as rejections account for a minority of responses. A second remarkable feature is that the Welsh first report and the Government response to it were debated in plenary session at the Senedd for one hour on the 7 October 2020. From this, it seems clear that the Welsh Committee’s report had significant impact, both in terms of parliamentary debates and in terms of influencing governmental decision-making, when compared to the Scottish Committee’s report. Nevertheless, there may be room for future engagements with the Scottish report by the incoming Government and Parliament.

Concluding remarks

The Scottish and Welsh Committees provide remarkable examples of good practice in parliamentary review of COVID-19 measures. Both are notable for framing their inquiries in a rights-based way. Both are quite participatory, although the Scottish Parliament has managed to provide for the widest participation mainly because Citizens Space has been successful in promoting this form of participatory democracy. In reading both reports, a clear and strong evidence-based and independent scrutiny of government measures becomes apparent. Finally, although it remains to be seen whether the Scottish report is successful in shaping government responses to the pandemic, the Welsh Committee has managed to influence both Parliament and Government.

In a time when rights-thinking and rights-review is wanting at Westminster, it seems there is much to be learned from the practices of committees in the devolved legislatures.

 

* We recognise that ‘BAME’ fails properly to capture the varied and particular experiences and identities of People of Colour in the UK. Our use of the term reflects its use in these inquiries and across public policy.

[1] See Equalities and Human Rights Committee Report on the Impact of the Covid-19 Pandemic on Equalities and Human Rights, SP 966, at paras [40]-[47]

[2] Welsh Committee, First Report at paras 1-13

[3] Equalities and Human Rights Committee, ibid., at para [425]

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