Emergency powers are temporary
Emergency powers are temporary
Ministers should return them after use, say peers
Parliament merely lends emergency powers to ministers, a committee of peers says in a report published today. These powers are not granted permanently and should be given back as soon as possible.
This thesis, put forward by the House of Lords constitution committee this morning in its latest report on the pandemic, may be more aspirational than actual. If parliament allows ministers to take powers without limit of time, it cannot insist on their return.
But it’s hard to disagree with the committee’s conclusions:
All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence.
When a government decides to fast-track legislation, it should do so for legitimate and urgent reasons only, limiting parliamentary scrutiny to the extent strictly necessary.
This is sound advice and the government would be wise to follow it. One reason for doing so would be to avoid the mistakes that have so far come to light. The constitution committee lists some of them:
On 23 March 2020 the prime minister announced the first England-wide lockdown in a televised address, stating that “the British people… must stay at home”. A day later, the health secretary said “these measures are not advice; they are rules”. No such requirements became law until 26 March 2020.
The first lockdown restrictions made it an offence for people in England to leave home without a reasonable excuse, which included the “need to take exercise”. No limit on the nature or duration of that exercise was prescribed in the legislation. Yet government guidance said that people could engage in only “one form of exercise a day”.
On 30 July 2020 the health secretary tweeted “from midnight tonight, people from different households will not be allowed to meet each other indoors in [named areas in northern England]”. The following day, Derbyshire police said: “You must not… meet people you do not live with inside a private home or garden…” These requirements did not become law until 5 August 2020.
On 18 March 2020 the government announced the closure of schools in England for all except “children of key workers and vulnerable children”. The only legal basis for this was a series of notices under the Coronavirus Act 2020. These notices decriminalised non-attendance but did not require schools to close. The use of this procedure shielded ministers from legal challenge and judicial oversight.
The most interesting thing about the coronavirus regulations, in my view, is not that they were so far-reaching. What I found even more remarkable was that there were no significant challenges to them in the courts — certainly, none that created any difficulties for the government.
In exchange for that leeway, the government must surely owe a duty to parliament along the lines outlined by the constitution committee:
Parliament holds the government to account by questioning ministers, debating and conducting investigative and scrutiny work, increasingly through its committees. In response the government is required to report, explain and defend its policies. The scrutiny process allows members of the public and interest groups to have their say, through representations to members of both houses, thus increasing the legitimacy of, and respect for, legislation in wider society.
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 could suffer. Governments should not fear meaningful legislative scrutiny. While the government is responsible for initiating most legislation, parliament’s responsibility for the legislative process promotes better laws, governance and, most importantly, better policy.
In response to future national emergencies, we recommend there should be a presumption in favour of using sunset provisions in fast-tracked regulations. We also recommend the government seek parliament’s approval of all affirmative instruments before they enter into force wherever possible. In the exceptional circumstances where this is not possible, the government should explain this and secure parliament’s approval as soon as possible after the regulations have entered into force.
Committing itself to greater parliamentary accountability in future would help make up for some of the mistakes made by the government over the past 15 months. But don’t hold your breath.
Meanwhile, as the committee recognises, it is the government’s duty to ensure that the law is clear. If ministers and the police cannot tell the difference between law and guidance, the moral justification for prosecuting individuals who are accused of breaking the criminal law must become very much weaker.
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