This post was originally published on the blog of the UK Constitutional Law Association.
A year since the Coronavirus Act 2020 received Royal Assent, Parliament will today (25 March 2021) once more debate the Coronavirus Act 2020 and its effects, effectiveness, and continuation. The Coronavirus Act 2020 is a touchpoint in the legal and regulatory response to the pandemic.
At the time of its passage it received very limited parliamentary scrutiny, but the Secretary of State provided assurances that Parliament would have meaningful opportunities to consider what he accepted were its significant impacts on everyday life through what the Government has since described as the “checks and balances of sunset clauses and fixed review points” built into it. Together with regular reporting mandated by the Act, these ‘review points’ offered opportunities to build an understanding of the impacts and effectiveness of the Act and the powers it contains that should feed into an analysis of the ongoing proportionality, necessity and suitability of the Act and help to ‘backfill’ the gap in parliamentary scrutiny that arose as a result of the urgent passage of the Act itself.
In particular, aided by insights and information generated by the two-monthly reports and other inquiries, reports and research undertaken on the pandemic, we might have expected that the six-monthly parliamentary votes mandated by the Act would function as modes of assessing the impact, effects and effectiveness of measures taken in order to (re)assess their proportionality. However, over the course of the last year, it has become clear that these processes are not functioning in this way. Instead, the two-monthly reports have primarily been descriptive, with either no or only a short and fairly cosmetic discussion of rights and equality impacts, while the debate on the first (and so far only) six-monthly motion was curtailed in time and unsatisfactory in substance.
The ‘Safeguard’ of Six-Monthly Votes
Although the entire Coronavirus Act 2020 will expire two years after its passage, Ministers can use their powers under s.90 to cause particular provisions to expire earlier than that, and indeed to extend provisions for up to six months. There is thus, clearly, scope for provisions to be reviewed in the time between the passage of the Act and its expiry. Ostensibly to allow for this, s.98 of the Act provides for a motion to be debated within seven sitting days of each six-month period of the Act’s operation: “That the temporary provisions of the Coronavirus Act 2020 should not yet expire”. If the motion is negatived the Minister must ensure the relevant provisions expire no later than 21 days since the beginning of the day of the vote.
This six-monthly vote was not originally proposed as part of the Act, but rather a compromise introduced ostensibly to address concerns about the Act’s intrusive nature. In the House of Commons debates on the Bill, Matt Hancock described it as “a further safeguard”, and in the House of Lords, Lord Bethell cast it as an important safeguard. Caroline Lucas MP welcomed it, saying that “It is crucial that we have the opportunity to correct any mistakes that could easily have been made in the understandably speedy drafting of this very large piece of legislation” (see also the interventions of Ruth Jones MP).
However, even at that early stage members raised concerns about how meaningful a safeguard the six-monthly vote was. Some questioned whether six-months was appropriate and asked why the period could not be shortened (Ed Davey for example proposed it should be three months; similar concerns were raised by Lord Scriven and Baroness Bennett in the Lords at Second Reading). Others pressed for the capacity to amend the Act, and not merely approve or negative the temporary provisions in toto, through the six-monthly vote (see for example interventions of David Davis and Chris Bryant MPs at Committee Stage, and Lords Falconer and Andersonin the Lords at Second Reading).
Concerns about the robustness of the six-monthly vote were borne out when the first six-month vote arose in September 2020. At that stage the House of Commons debated the motion for just over an hour and a half, 90 minutes having been assigned to the debate. A number of MPs were critical of this. Criticising the limited time allotted, Ian Blackford MP, for example, said “These six-monthly reviews cannot be a rubber-stamping exercise. They must have the teeth to provide meaningful scrutiny, to protect human rights and to promote public health”.
As to the substance of the debate, the Secretary of State for Health and Social Care asserted the necessity of the Coronavirus Act 2020. According to him, “The Act is still needed to keep people safe. I understand that these are extraordinary measures, but they remain temporary, time-limited and proportionate to the threat that we face….To stand down the Act now would leave Britain exposed at a time when we need to be at our strongest”. In the main, the debate was not especially focused on the Coronavirus Act itself. Instead it broadened out to business disruption, testing, tracing, division of labour between central and local government, financial relief, and broadly speaking the government’s handling of the pandemic. There were some engagements with the substance of the Act and with its implications for rights, including the power to detain potentially infectious persons under Schedule 21 and the rights of persons with disabilities, but these were not effectively responded to by the Secretary of State.
Indeed, the debate was largely about Parliament’s role rather than the Act itself. This was in part a result of the political context in which it took place, and especially what was generally known as the Brady amendment, which sought to secure more parliamentary oversight of regulations introduced under the Public Health (Control of Disease) Act 1984. Addressing this in his opening statement, the Secretary of State effectively confirmed that the ‘made affirmative’ procedure would be used for at least some future pandemic measures, saying “I can confirm to the House 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. But of course, responding to the virus means that the Government must act with speed when required, and we cannot hold up urgent regulations that are needed to control the virus and save lives”. This applied not only to measures taken under the Coronavirus Act 2020 but also the Public Health (Control of Disease) Act 1984.
Reflecting this, MPs seemed to focus broadly on the pandemic response, and particularly on Parliament’s role therein, rather than on the Act per se, and at the end of the 90 minutes the motion was approved (ayes: 330, noes: 24).
Six-Monthly Votes as a Mode of Accountability
As it is now time for another vote on the temporary provisions of the Coronavirus Act, it is apposite to reflect on the sufficiency of the six-monthly vote as a form of safeguard or scrutiny.
As has been observed in other settings such as counter-terrorism, the way such votes are constructed may operate to effectively guarantee a particular outcome: that the powers will not be expired. This occurs when Parliament has an opportunity only to vote on the expiry or maintenance of the Act as a whole, and cannot vote for some provisions to fall and some to be maintained or, indeed, amended. In such cases, the vote might be understood as a concession to parliamentary scrutiny only inasmuch as it creates an opportunity for Parliament to vote.
‘All or nothing’ renewal/continuation/expiry motions are a useful formula to create the appearance of parliamentary control but restrict the options in a way that severely constrains parliamentary agency. The perceived consequences of negativing the motion (i.e. the expiry of the temporary provisions before the relevant Ministers prescribe and/or the Act itself expires) are so weighty, and the potential implications so costly in political and other terms, that Parliament might rightly consider itself backed into a corner. Thus, even though at the time that the Act was passed, the six-monthly vote was presented as a concession to concerns of parliamentary scrutiny, its capacity to operate in such a way was always limited by its form.
The enormity of the consequences of negativing the motion are not lost on parliamentarians; consider this exchange from the six-month motion in September 2020:
“Dawn Butler MP: If the Coronavirus Act were voted down today, would the Minister not have 21 days to bring forward to the House another Act, which the House can then agree?
Matt Hancock MP: The principle of the Coronavirus Act is that it underpins so many of the actions that are necessary. To vote down the Act and not to renew it would lead to an undermining of the actions that we need to take to keep this country safe.”
This is precisely why, during debates on the Coronavirus Bill, a number of MPs sought to have the six-monthly vote formulated differently, to allow Parliament to vote for some powers to expire while maintaining others.
A further challenge to the usefulness of the six-monthly vote relates to the quality and quantity of information available to parliamentarians for the purposes of these debates.As already mentioned, the Coronavirus Act 2020 requires the Secretary of State to “prepare and publish a report on the status of the provisions of Part 1 of this Act” in respect of every two-month ‘reporting period’, and to include within that report “a statement that the Secretary of State is satisfied that the status of those provisions is appropriate” (s.97). Given that these reporting requirements were constructed to be important aides to transparency and accountability, we might expect that they would provide the kinds of information that would enable meaningful parliamentary scrutiny.
While this statutory obligation to report is modest (the report need only relate the status of measures in Part 1 of the Act), the two-monthly reportshave been more than merely minimally compliant. Each report features an introductory section, which seeks to articulate the aims and objectives of the Act, explain the reporting requirement as an accountability and transparency requirement, and assert the proportionality of the Act and the measures that are being reported upon. However, while the reports provide more information than strictly required by the Act and explain why some provisions have been used and others not, they do not actually reason out or explain whether and how the Act’s provisions are necessary, proportionate, effective or reasonable and based on best scientific evidence. Indeed, it was not until the fourth report, in November 2020, that there was any express engagement with rights at all, albeit a very curtailed one.
This expanded discussion of rights, which has continued since the November 2020 report, may in part be a response to concerns that were expressed about the usefulness and adequacy of these reports. The Report on Parliamentary Scrutiny of the Government’s Handling of COVID-19 by the Public Administrative and Constitutional Affairs Committee noted that “The two-monthly reports on the status of non-devolved provisions, published under section 97, should be an important tool for scrutiny, but as currently structured, the reports do not give enough detail to enable Parliament, experts or the public to do this”. Along similar lines, the Equality and Human Rights Commission has noted that “very few Government policies appear to have been assessed for their impact on equality and human rights, and there has been limited information published to demonstrate how these policies are being monitored for their ongoing impact and tailored to the needs of people sharing protected characteristics” and recommended the Government “show leadership in ensuring equality and human rights considerations are embedded into decision making during the pandemic and publishing information on how this has been done”, including in the reports under the Coronavirus Act 2020.
The most recent report, released earlier this week, includes an assurance that “the Government has conducted a thorough review of the non-devolved provisions to check they are necessary and proportionate” (p. 9) and that “great care is given in ensuring any action is proportionate, in place for as short a time as possible and has appropriate checks and balances” (p. 15). However, that report does not articulate an evidence-based assessment of proportionality including whether the measures in the Coronavirus Act 2020 are minimally intrusive compared to other options for the pursuit of the legitimate interest of protecting public health. Instead, in this report proportionality is effectively asserted even though, 12 months from the passage of the Act, there is considerable empirical, epidemiological, sociological and other evidence, as well as sixty parliamentary committee inquiries and the evidence adduced by them, against which to undertake a more substantive analysis. Coupled with the fact that very few of the sixty committee inquiries related to COVID-19 that have occurred over the last twelve months engaged with rights issues, this points to a lack of useful and usable human rights analysis by government or Parliament of which parliamentarians might avail themselves.
This post and the nature and shortcomings of the six-monthly vote as a scrutiny mechanism point to a larger set of problems relating to Westminster, scrutiny, rights, and the pandemic. With Lock and Grez I have previously written about the inattention to rights in everyday parliamentary business relating to the pandemic. While this may in part be attributed to an inhospitable political environment for rights-talk, it may also in part be a reflection of the scale, complexity, and polycentricity of the pandemic response and the problems this poses for parliamentary scrutiny.
While the six-monthly votes on the Coronavirus Act 2020 have their own limitations, even if they were not ‘all or nothing’ motions, and even if the two-monthly reports were more robust, scrutiny processes built into the Coronavirus Act 2020 would not be sufficient to excavate and ensure accountability for the impacts, (in)adequacies, and (in)effectiveness of the pandemic response. This is simply because so much of it is pursued and premised not on the 2020 Act but on the Public Health (Control of Disease) Act 1984. One reason why the six-month debate on the Coronavirus Act 2020 was so general, imprecise, and engaged generally with questions of scrutiny by Parliament may well be because the motion itself did not relate to the pandemic response, and because it is difficult to pull out the parts of the response related specifically to the Act and disaggregate its effects, impacts, and rights implications from those of the whole panoply of measures being implemented.
Image: By Alvesgaspar – self-made, stitch from 4 photographs, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=3261552