Coronavirus: Parliamentary scrutiny and lockdown regulations

Graeme Cowie

Public health regulations have been used throughout the UK as an important part of the policy response to the coronavirus pandemic. These are legal rules imposed, by the UK Government or a devolved authority, with the explicit objective of containing the transmission of coronavirus. The hope is to reduce the number of people becoming ill or dying before effective treatments, and a vaccine, can become widespread.

These regulations have been used at different points to keep us in our homes, limit the size and location of gatherings, restrict domestic and international travel, require people to wear face-coverings in shops and on public transport, and restrict (or even close) places of work, education and recreation.

MPs have raised concerns about the way these emergency measures have been made, and the level of parliamentary scrutiny that they have received. On Wednesday 30 September, the Government promised changes to its approach, in an attempt to assuage some of those concerns.

The legal framework

The power to make public health regulations rests with different governments in the four parts of the UK. Devolved authorities make regulations for Scotland, Wales and Northern Ireland. The UK Government makes regulations for England.

In England and Wales, powers have (mostly) been exercised under Part 2A of the Public Health (Control of Disease) Act 1984 (as amended).
In Scotland, powers have (mostly) been exercised under Schedule 19 of the Coronavirus Act 2020.
In Northern Ireland, powers have (mostly) been exercised under Schedule 18 of the Coronavirus Act 2020, which amends the Public Health Act (Northern Ireland) 1967.

Regulations are secondary legislation, made under a statutory instrument. There are “standard” forms of parliamentary scrutiny for statutory instruments. The rules are set out in a power’s parent Act and the Statutory Instruments Act 1946. MPs can only vote to “approve” or to “reject/annul” statutory instruments; they cannot, themselves, amend the text.

Types of procedure

Regulations can be made under different types of procedure, depending on what new rules do, and on the circumstances in which they are (perceived to be) needed.

Negative procedure

The default rule in Part 2A of the 1984 Act is that regulations are made “subject to annulment”. This is the “negative procedure”. A Minister can make a law and bring it into force immediately, without prior parliamentary approval. Either House can, within 40 days of the instrument being laid, vote to annul the regulations. However, there is no automatic expectation of a debate and vote taking place.

Regulations restricting international travel are (mostly) made subject to annulment, under section 45B of the 1984 Act.

Draft affirmative procedure

A different procedure is used for most domestic health protection regulations made under section 45C. By default, they must receive prior parliamentary approval. The “draft affirmative” procedure requires the Government first to lay the draft regulations before Parliament. They must then be approved by each House of Parliament. Only then can a Minister make the instrument and bring it into force.

Of the types of procedure normally used for statutory instruments, draft affirmative gives parliamentarians the most power. They can stop an instrument from becoming law in the first place.

However, the draft affirmative procedure has rarely been used for domestic public health regulations. Governments in all four parts of the UK have instead relied on an “urgency” procedure in their respective parent Acts.

Urgency Procedure and made affirmative

If a statutory instrument:

contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved

then it does not need prior parliamentary approval. The instrument must be laid before each House of Parliament after it has been made but it can have force and effect immediately.

If the “made affirmative” procedure is used, an instrument lapses (in this case) 28 days after it is made, unless it is approved by both Houses in that period. The 28 days excludes periods of dissolution, prorogation or prolonged adjournment. Either House may “reject” the regulations within the 28-day period, in which case they expire at the end of that day.

Controversy

The main advantage of urgency procedures is that they allow new rules to be introduced without significant delay. However, they weaken legislative scrutiny. Some MPs have even described them as “ruling by decree”.

Regulations can be made and published at extremely short notice before they come into effect (sometimes less than an hour). This makes parliamentarians, and the public, more dependent on prior government policy announcements to understand what is mandatory, permitted, discouraged, or prohibited.

Secondly, weeks pass, and sometimes more than a month as a result of periods of adjournment, between regulations coming into force and parliamentary scrutiny of them. There have been examples during the pandemic of delegated legislation committees examining, and MPs voting on, regulations that have in substance already been superseded. Ministers often review public health measures on a one to four-week cycle, so changes can be fairly frequent.

New Government commitment

On Wednesday 30 September, Matt Hancock (Health Secretary) promised the Commons that “for significant national measures with effect in the whole of England or UK-wide” the Government would (a) consult parliament and (b) hold votes (wherever possible) before regulations come into force. He also promised that there would be regular statements and debates in parliament, and more opportunity for parliament to question government scientific advisors.

What about local lockdowns?

This commitment does not appear to apply to measures that affect only part of England. Localised restrictions have become more common since July.

Who decides what is a “significant” measure?

Ultimately, the UK Government makes this assessment.

Could urgency procedure still be used?

Yes. This promise does not affect any legal powers ministers have under any legislation.