Statutory instruments, the Covid Act and the importance of pre-decision scrutiny

Posted on 29/09/2020 by Ed Hammond.

Recent events in Parliament have provided us with a stark reminder of the absolute importance of scrutiny on the national stage – and act as a useful rejoinder to those who claim that the function has little practical impact.

The Coronavirus Act gives Government sweeping powers to make Regulations on matters relating to the pandemic. We have commented before on Government’s choice to enact bespoke legislation to tackle the pandemic, rather than using the existing powers provided by the Civil Contingencies Act. This was, of course, to deliberately sidestep the scrutiny provisions in the CCA.

And there has certainly been plenty of Regulations, and many of them have been sweeping. They have covered the national lockdown, local lockdowns, changes to licensing laws, enforcement of self-isolation (more on that later) and a whole slew of other issues.

Regulations are one of a number of types of “secondary” legislation know as statutory instruments, or SIs. They are “made” subject to the powers granted to Government in primary legislation (Acts of Parliament). They can be made in two ways – through “affirmative” procedures – where an SI is laid in Parliament in draft and its contents are debated and voted on in committee prior to becoming law – or through “negative” procedures, where an SI is laid and will become law automatically unless objected to in the House.

Regulations made under the Covid Act, and otherwise relating to the pandemic, have usually been “made negative”. They are introduced to Parliament signed by the Minister, and as such come into force either immediately or very shortly after being laid. Any scrutiny of their contents has therefore been post-hoc in nature.

A common feature of many of these Regulations is that:

• Their arrival has been briefed to the media, often in relatively vague terms, prior to Regulations being laid;
• Regulations are usually made negative, and come into force very shortly after being laid in Parliament;
• The content of these Regulations may not align either with what was briefed beforehand, with Regulations already made or with guidance already issued – or, in some cases, with guidance issued subsequently.

We need to be clear that Government has to take swift action to deal with the way that the crisis is developing. But there is a growing chorus of disapproval about the lack of scrutiny of the Regulations before they come into force – and what this means for their quality.

If you fancy a more lengthy read on this pressing issue – last night (28 September) the Hansard Society published something very comprehensive on it.

Some Regulations have been drafted in a way that hinders ease of understanding. The use of the word “mingling” in Regulations – relating to restriction on social gatherings – produced particular consternation a couple of weeks ago. Some Regulations may even overstep the powers given to Government to make secondary legislation – for example, enforced restrictions to liberty for self-isolation, which purports to use public health powers which may not exist.

Some Regulations have also had unexpected (for Government) consequences. Swift changes in the law the compel licensed premises to close their doors at 10pm led, over the weekend of 19-20 September, to large concentrations of people on the streets and on public transport in town and city centres. Licensing professionals could have predicted this – Government did not.

Finally Regulations taken together have made the law around the coronavirus a maze of abstraction. What restrictions exists in different places, and to whom they apply, is unclear. This morning (29 September), asked about what restrictions applied to individuals under lockdown in the North East, the relevant Minister said she was unable to answer as the question didn’t relate to her constituency. If the Minister with national responsibility for these issues doesn’t have a handle on how local and national restrictions intersect, what hope is there for the rest of us?

Scrutiny provides you with an opportunity to subject your plans to testing and rigour. If you think that swift and decisive action are better than injecting a small degree of challenge into the decision-making process you assume that your decisions are 100% robust. But we are all human, and many of those decisions may lack the robustness that you expect. You may be basing them on partial information, or your perspective may be a bit off – or you may have framed the problem, or the solution, in the wrong way.

Scrutiny provides you with that opportunity to test, and to avoid the risk of embarrassing backtracks later. It also raises the possibility that, through other people’s perspectives, you will find novel solutions to problems – ones that simplify, rather than obfuscating.

As I write this, steps are afoot by MPs to “draw back” powers from Government and to insist on further scrutiny of Regulations as they are laid. Government is having to negotiate with its backbenchers, and with other parties, to quickly put together a solution for scrutiny that will satisfy this potential revolt. And to think that, with a little, more prudently applied, reflection and oversight, this might have been avoided.