Covid regulations: Parliamentary opposition needs an MOT

When the Opposition forgets its duty to oppose – the Spectator’s editorial on 10 April called it a ‘collapse of democratic scrutiny’ – HMG is unlikely to be suitably hard on itself. On the contrary, in the panic to ‘do something’ it drove through the Coronavirus Act in a single day in each House, worded so as to give itself not only wide powers to restrict our movements (Schedules 21 and 22) but also a shockingly relaxed six months between Parliamentary reviews, the last having taken place on 25 March in the space of a mere 3 ½ hours https://hansard.parliament.uk/Commons/2021-03-25/debates/9701394F-FF53-4364-85E1-F017B13CE921/Coronavirus.

As Lord Sumption noted in his October lecture ‘Government by Decree’ https://resources.law.cam.ac.uk/privatelaw/Freshfields_Lecture_2020_Government_by_Decree.pdfand as reconfirmed by the Health Secretary in the 25 March debate, the Government is basing its measures on the Public Health (Control of Disease) Act 1984, which is worded in a dangerously woolly way. Lord Sumption commented: ‘It is a basic constitutional principle that general words are not to be read as authorizing the infringement of fundamental rights,’ and contrasted that 1984 Act with one the Government might have chosen to use instead, the Civil Contingencies Act 2004 https://www.legislation.gov.uk/ukpga/2004/36/contents.

Like the 1984 Act the 2004 Act allows the Government carte blanche, but recognising the perils of such power it also requires, says the noble Lord:

‘a high degree of Parliamentary scrutiny… Emergency regulations under the Civil Contingencies Act must be laid before Parliament in draft before they are made. If the case is too urgent for that, they must be laid before Parliament within seven days or they will lapse. If necessary, Parliament must be recalled. Even if the regulations are approved, the regulations can remain in force for only 30 days unless they are renewed and reapproved. Unusually, Parliament is authorised to amend or revoke them at any time.’

The Government’s information and strategies may or may not be correct in every detail, but it should not be left to the news and social media, demonstration and riot to provide that scrutiny and opposition.

Perhaps our long involvement with the European imperial project and its masses of secondary legislation has led us to forget how our own system works. Westminster resembles a vintage car put up on bricks while the owner was abroad, and now it has to be serviced to make it roadworthy again. Before the law machine roars into life and straight for the nearest tree, we need the brakes and steering provided by the committees, the Opposition and the House of Lords.

My suggestion, which I hope you will accept, is that we should pick up on Lord Sumption’s observations and ask our MPs to press the Government to re-base its extraordinary power grab on the Civil Contingencies Act 2004 so that an equally extraordinary degree of scrutiny can be applied. If that had happened on 25 March, the 30-day review would be due this week, rather than next September.

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