The report discusses how far the government's legislative response to the pandemic has respected the Rule of Law, particularly focussing on assessing the extent to which the government's response changed over the last year to address Rule of Law concerns that were brought to the government's attention in the first six months of the pandemic.
In the report, the BIICL found that:
• the government is still failing to provide Parliament with impact assessments for coronavirus legislation, meaning that Parliament has often not had the information it needs in order properly to scrutinise measures which have profound social, economic and health impacts
• the government has made positive changes in increasing the transparency of scientific advice and evidence. However, there have continued to be occasions where the government has not been sufficiently transparent as to how advice and evidence has fed into policy making
• the Coronavirus Act 2020 received very little parliamentary scrutiny when it was made, and the mechanisms for ensuring post-legislative scrutiny and accountability have been largely ineffective. In addition, insufficient time has been allocated to the renewal debates, which has limited the House of Commons' ability to provide effective post-legislative scrutiny of the Act
• the government has continued to use unamendable, delegated legislation to introduce measures which substantially affect people's everyday lives and criminalise ordinary behaviour. The BIICL query the necessity of using delegated legislation to implement significant policy changes after the initial crisis stage of the pandemic had passed
• in the first six months of the pandemic, there was widespread concern at the government's use of the urgent procedure to make regulations that came into force before they had been debated or approved by Parliament. The government has made positive changes in response to this criticism, and has ensured that Parliament has had the opportunity to debate and approve in advance of implementation most of the major, national coronavirus measures. However, the government continues to use the urgent procedure to accelerate standard parliamentary timescales. Again, the BIICL query the need for the government to prioritise an urgent response over proper parliamentary scrutiny at this stage of the pandemic
• new coronavirus laws have continued to come into effect at very short notice, even when there does not seem to be a need for an urgent implementation of the new law, making it difficult for individuals and businesses to get fully up to speed on their rights and responsibilities before new legislation comes into force
• many significant coronavirus laws are still being introduced via amending regulations. Because these amending regulations have been introduced at very short notice, a consolidated version of the original regulations - incorporating the amendments - has not always been publicly available by the time the new laws have come into force. This makes it difficult to make sense of how the law has changed
• the government has continued to portray its public health advice as having the force of law, causing confusion among the public and the police, and has resulted in police forces acting beyond their powers by enforcing government guidance rather than the law
The report ends with the BIICL's conclusion that ministers appear to have grown accustomed to the ease with which laws can be made when the government has enhanced legislative control, and they seem reluctant to relinquish law-making functions back to Parliament now that the urgency of the initial stages of the pandemic has passed.
The BIICL has said there is an urgent need to distil the lessons learnt in the last 18 months about the extent to which the current legal framework and institutional arrangements are able to ensure that the response to public health emergencies is also compatible with the commitment to the Rule of Law.
Source: 18 Months of COVID-19 Legislation in England: A Rule of Law Analysis
This content was first published by LNB News / Lexis®Library, a LexisNexis® company, on 18 October 2021 and is published with permission. Further information can be found at: https://www.lexisnexis.co.uk/
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