Coronavirus Bill: Amended time limits and post-legislative review

Graeme Cowie

This is a fast-moving issue and should be read as correct at the date of publication (25.03.20).

Last week the Government introduced the Coronavirus Bill for consideration by the House of Commons. This Bill included a range of emergency measures to enable public bodies to respond to the unique challenges presented by the current pandemic.

This Insight will examine the provisions setting time limits on this emergency legislation. It will also explain the measures included to ensure post-legislative review.

Effective scrutiny for exceptional measures

On Monday the Commons approved the Bill, but with amendments, and sent it to the Lords for further consideration.

The Bill’s measures are substantial and exceptional. They go well beyond the powers normally available to public bodies. When powers of this kind are conferred by Parliament, MPs and Peers often seek assurances that they will be:

(a) exercised only temporarily,

(b) used only for the purposes for which they were granted, and

(c) used in a manner proportionate to the situation.

What protections did the original Bill include?

In a previous Insight we explained the role of “sunset clauses” in the Coronavirus Bill. The Bill contained clause 75, which has been renumbered as clause 89 in the Lords. It imposed a time limit on most (but not all) of the Bill’s provisions. This would have meant that those extraordinary measures would expire no later than late March 2022 at first instance (two years after Royal Assent).

In addition, original clause 76 (renumbered as clause 90 in the Lords) would have allowed a “relevant national authority” to extend the lifetime of one or more provisions by up to six months, or to bring them permanently to an end before they would have otherwise expired. This power would extend both to the UK Government and, so far as they relate to devolved matters, to the Scottish Ministers, Welsh Ministers and Northern Ireland departments.

Regulations under original clause 76(2) (extending provisions by up to six months) could be made under either the made affirmative or the draft affirmative procedures. This would allow Ministers to extend the time limit on the arrangements but subject to either eventual or prior Parliamentary approval respectively. If either House was sitting as normal, and after a 40-day period Parliamentary approval for an extension had not been granted, the regulations would lapse.

The Government presumably took this approach in case the Bill’s provisions had to be extended but it was not possible or practical for Parliament to sit to approve the extension.

Why did some people raise concerns about this?

Two years is (relatively speaking) a long time for emergency arrangements to be in place. In other times of emergency, Parliament has typically had regular opportunities to review and reconsider extraordinary exercises of power by the Government.

For example, in the Civil Contingencies Act 2004, “emergency regulations” are much more rigorously time limited. They must be made afresh every 30 days and lapse seven days after they are laid unless both Houses of Parliament have explicitly approved them.

Several MPs and legal commentators expressed the view that a two-year sunset clause is too long. They were concerned that it potentially conferred very wide powers for a longer period than necessary. Without the power of initiative, Parliament would have no obvious mechanism to curtail redundant measures once they were no longer required.

What compromise has the Government offered?

The Government proposed New Clause 19 at Commons Committee Stage. This was agreed to without a division. It now forms clause 98 of the Bill as introduced in the Lords. It provides a review mechanism for the temporary measures in the Act at six-monthly intervals.

The clause provides that “so far as practicable” a UK Government Minister must arrange for a motion to be debated and voted on by the House of Commons within seven days of the end of each six-month review period. The motion would read:

“That the temporary provisions of the Coronavirus Act 2020 should not yet expire”.

If the motion was then “rejected” by the House of Commons, a Minister of the Crown would have 21 days within which to make regulations causing the temporary provisions to expire.

There is also a new requirement (in clause 99 of the current Bill) for the Government to publish and allow debate on a “one-year report” in both Houses should the non-devolved powers in the Bill remain operational beyond March 2021.

Two important observations should be made about this compromise.

Firstly, it does not affect the lifespan of any measures falling within devolved competence (and which would therefore need the consent of, say, the Scottish Ministers).
Secondly, it effectively requires the House of Commons to approve or reject the remaining temporary emergency measures collectively rather than individually. There is no formal power for Parliament to pick and choose which measures can remain in force: the initiative for that continues to rest with Ministers.

What other alternatives were suggested?

On Monday 23 March, the House of Lords Delegated Powers Committee published its report on the Bill. It recommended that the provisions should instead be subject to a one-year time limit and that there should not be a power for Ministers or devolved authorities to extend it by regulations.

Amendments 6 and 8 at Commons Committee Stage, tabled by David Davis, would have given effect to that proposal.

Alternatively, Amendment 1, tabled by Harriet Harman, would have limited the Act to only six months, but retained the possibility of a further six-month extension. This alternative would have required the Government to consult the Members of the House of Commons Liaison Committee before extending the sunset on the Act.

These alternatives were superseded by the Government’s compromise proposals.

Effective scrutiny for exceptional measures

What protections did the original Bill include?

Why did some people raise concerns about this?

What compromise has the Government offered?

What other alternatives were suggested?

Further Reading