Use of emergency powers during pandemic has significantly impacted legislative scrutiny and legal clarity, says Lords committee

In the third and final report of its inquiry into the constitutional implications of COVID-19 - COVID-19 and the use and scrutiny of emergency powers - published today, the committee highlights several areas of concern, including the extensive use of secondary legislation, strained relations between the UK government and the devolved administrations, and confusion about the legal status of some new restrictions.  

The report examines the passage of the Coronavirus Act 2020 and the regulations introduced in response to the pandemic, including those made under the Public Health (Control of Disease) Act 1984. The vast majority of new laws have come into effect as secondary legislation and have been subject to very limited parliamentary scrutiny. The committee considers the alternative legislative options that were available to the government which could have improved scrutiny.  

Legal changes introduced in response to the pandemic were often set out in guidance, or announced in media conferences, before Parliament had an opportunity to scrutinise them. On a number of occasions, the law was misrepresented in these public-facing forums. This created a lack of clarity around which rules were legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance.  

The report makes a number of recommendations, including:  

• There should be a presumption in favour of using sunset provisions in all regulations introduced during a national emergency. 
• The government should seek Parliament’s approval of all affirmative instruments before they enter into force wherever possible.  
• All future ministerial statements and Government guidance on changes to COVID-19 restrictions should clearly distinguish information about the law from public health advice. 
• A review of the use of emergency powers by the government, and the scrutiny of those powers by Parliament, should be completed in time to inform the forthcoming public inquiry and planning for any future emergencies. 
• The approach adopted in response to the pandemic must not be used to justify weakened parliamentary scrutiny of Government action in response to future emergencies. 

Baroness Taylor, Chair of the Constitution Committee, said:  

“Since March 2020 the Government has introduced a large volume of new legislation, much of it transforming everyday life and introducing unprecedented restrictions on ordinary activities. Yet parliamentary oversight of these significant policy decisions has been extremely limited.  

“The vast majority of new laws, including the most significant and wide-reaching, have come into effect as secondary legislation and without prior approval from Parliament. When scrutiny is limited through the fast-tracking of legislation, or the extensive use of secondary legislation, essential checks on executive power are lost, and the quality of the law suffers. 

“We acknowledge that there have been a number of occasions throughout the COVID-19 pandemic where legislative measures have been urgently required to limit the spread of infection. That does not, however, justify the publication of significant measures hours—and in some case minutes—before taking effect. Emergency legislation is never an acceptable alternative to effective government planning for periods of crisis. 

“Government guidance and public statements have —on multiple occasions— undermined legal certainty by laying claim to legal requirements that do not exist. The Government does not have, and must not assume, authority to mandate public behaviour other than as required by law.”