The government’s use of emergency Covid powers ‘significantly constrained’ parliamentary scrutiny, while confusion about new laws led to wrongful criminal charges, an influential Lords committee has said.
In a report today, the Lords constitution committee says that the vast majority of coronavirus laws – ‘including the most significant and wide-reaching’ – came into effect as secondary legislation, often without prior approval from parliament.
‘When parliamentary democracy is operating as it should, significant policy decisions should be enacted in primary legislation subject to full scrutiny by parliament,’ the report states. ‘The government chose not to include a general lockdown power in the Coronavirus Act 2020. Had it done so, parliamentary oversight of the use of lockdowns in England in response to the Covid-19 pandemic would have been improved.’
The committee noted that the government chose not to use the Civil Contingencies Act 2004 to introduce the lockdowns in England, instead relying upon powers in the Public Health (Control of Disease) Act 1984. This meant parliament was less involved in the legislative process and that regulations could theoretically remain in force for an unlimited period.
‘All governments should recognise that, however great or sudden an emergency may be, powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence. Emergency legislation is never an acceptable alternative to effective government planning for periods of crisis,’ the committee states. It adds that the government's tendency to rely upon urgent procedure was ‘exacerbated by poor planning’.
It recommends a presumption in favour of using sunset provisions in all regulations introduced during a national emergency, meaning changes would expire after three months unless renewed by a resolution of both houses.
The committee also found that legal changes introduced in response to the pandemic were often set out in guidance or announced in media conferences. ‘On a number of occasions, the law was misrepresented in these public-facing forums,' the report states. 'The consequence has been a lack of clarity around which rules are legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance.’
It cites an instance of a police force threatening to search individual shopping baskets in supermarkets to check for non-essential items. This was not something the police ever had the legal authority to do.
‘It is incumbent upon the government to make the law clear. When enacting new Covid-19 restrictions, the government should be guided by the principles of certainty, clarity and transparency, and seek to avoid rapid and last-minute changes to the law as far as possible.'