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Even as Covid-19 is absorbed into ‘the new normal’, the government’s response continues to be framed by an emergency paradigm. This is underpinned largely by the Coronavirus Act 2020 (CVA), fast-tracked through Parliament a few days before its recess in March 2020.
These powers enable the government to take control over vast areas of public life: to shut ports and gatherings; to close schools and nurseries; to postpone elections and referendums; and to detain individuals under the Mental Health Acts with the permission of just one doctor rather than two. But the short time available for Parliament to scrutinise these powers before they became law was a cause for significant concern.
A promise of parliamentary scrutiny
In recognition of this short timeframe, Parliament was told it would have further opportunities to subject the powers in the CVA to scrutiny in the form of six-monthly reviews of the act. However, numerous MPs noted that the mode of review suggested had significant limitations. Such scepticism proved prescient. The first review was scheduled for a paltry ninety minutes. It also coincided with the Brady amendment (through which ‘lockdowns’ were introduced and shaped), which ended up dominating the debate.
The second review – that is, the one-year review (OYR) – seemed to offer more opportunity for effective scrutiny. It was scheduled for 210 minutes in the House of Commons, meaning MPs were able to present a range of human rights issues related to the operation of the CVA. These included: preventable deaths; inequalities in deaths; the use of Schedule 21 to detain potentially infectious people; the treatment of individuals in care homes; the right to protest; the provision of healthcare to non-coronavirus sufferers; disproportionate impact of the pandemic on BAME populations; and the potential need for a public inquiry. But there are still some important features of the OYR that point to the continued marginalisation of Parliament and to superficial government engagement with the process.
Obstacles to meaningful scrutiny
The first problematic feature was the lack of time for MPs to scrutinise the operation of the CVA. The motion for the OYR was debated in conjunction with four other motions which meant that the allotted time was shared between five motions. This technique of loading multiple motions with different implications into one debate can be read as at best a downgrading and, at worst, a cynical obstruction of the opportunity for scrutiny that Parliament was promised when the six-monthly reviews were introduced.
A second obstacle to meaningful parliamentary scrutiny is its ‘all or nothing’ framing, in which the House of Commons is given the opportunity either to expire all or none of whatever temporary powers are in operation at the time of the motion. Finally, there were problems with the government’s annual report on the operation of the CVA. This report is clearly intended to inform parliamentary scrutiny. However, the often highly technical sixty-eight-page report was not published until three days before the OYR, meaning MPs had little time to digest it.
Particular attention should be paid to the failure to engage robustly with the human rights implications of the act: whilst the obligation to take steps to protect life and to ensure health services are available was arguably addressed, the CVA and other powers introduced during the pandemic are in tension with rights to privacy, to equality and non-discrimination, to family life, to fair trial, and more. Several key issues such as the implications of the CVA changes to court proceedings, and the unequal impact of school closures, were never mentioned by MPs in the OYR debate. In addition, crucial evidence and analysis from parliamentary committees, the National Audit Office, the Equality and Human Rights Commission and the Office of National Statistics was ignored.
It is easy—and indeed common in some other governance areas such as counter-terrorism—for the government to claim to ‘compensate’ for a lack of scrutiny at the time of passing an act by offering ex post facto reviews of this kind. But for that claim to be credible, the postponed scrutiny must be meaningful and effective. There is thus much at stake—not only for the CVA, but also for Parliament as a constitutional and political actor—in the six-monthly reviews of the CVA that remain.
Adequate time must be given to the debate on the motion, and the motion on the temporary powers under the CVA must be considered as a stand-alone motion. Prior to the next review there should be an attempt to amend the CVA so that the six-monthly reviews allow for some temporary provisions to be maintained and others to be expired by vote - that is, to move away from the all or nothing approach
For Parliament to insist on a more consequential review power in the CVA would send an important message about future legislation. It would also send a crucial signal regarding its insistence on sustained institutional centrality and resistance to attempts to marginalise Parliament and undermine its function as an accountability forum within the UK’s constitutional order.
Update from recent weeks
The third and final six-month review of CVA took place on 19 October 2021. Despite repeated complaints from MPs about the lack of time for debate, the review was again scheduled for ninety minutes. The overall result of the Government’s scheduling across the reviews has been that in eighteen months, MPs have had just 180 minutes of concentrated time to consider the operation of the Act, plus 240 minutes of time considering that Act alongside other motions. Parliamentary committee reports received just three references across the debate. Neither the human rights implications of changes to court proceedings, nor the unequal impact of school closures, were mentioned.