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Coronavirus rules must be published before they come into force

Hannah White argues the government should go further to enable MPs to scrutinise its response to the pandemic properly

The government has avoided a potential backbench rebellion over parliamentary scrutiny of coronavirus legislation – for now. Hannah White argues the government should go further to enable MPs to scrutinise its response to the pandemic properly

In the event, the Brady amendment was the dog that didn't bark. Enough Conservative MPs had been prepared to support Sir Graham Brady's amendment to the government’s motion renewing its powers under the Coronavirus Act 2020, that – with the support of opposition parties – it would have passed. Its effect would have been to affirm the Commons’ support for the continuation of the powers but with the proviso that the government should make every effort to allow parliamentary scrutiny of any new regulations before they came into effect.

The government dodged this likely defeat because the Speaker did not allow a vote on the amendment. Sir Lindsay Hoyle’s rationale for sticking to the procedural rulebook and not selecting any amendments to the motion was that the passing of any amendment would create legal uncertainty about the government’s ability to use the powers and whether measures already taken under the powers would remain valid. In not allowing the vote, Sir Lindsay fulfilled the manifesto commitment he made when standing for election as Speaker to be a more predictable, precedent-following chair than his predecessor – a commitment which had won him considerable support among Conservative MPs.

The government's compromise offer to Conservative backbenchers is weak

With the vote disallowed, the government’s undertaking to placate its unhappy backbenchers was as weak as it could have been:  where possible to allow a prior vote on regulations applying either to the entire UK or the whole of England. At the moment the government is doing everything it can to avoid country-wide measures – preferring the ‘whack-a-mole’ strategy of local lockdowns. The local rules to enforce such lockdowns would not be covered by the government’s commitment, despite these being some of the measures to which MPs seem to object the most.

Under the government’s so-called concession, even country-wide regulations could still be passed without prior parliamentary approval if the government decides it needs to act at greater speed than the parliamentary process would allow. Thus far it has consistently judged it necessary to do so. The rebels have no guarantee this will change and no means of enforcing the government’s commitment if it does not.

Nor does the undertaking go far enough. It seems to be limited to allowing a vote "where possible": the government has made no commitment to lay regulations before the House in sufficient time to allow MPs – and their constituents – to scrutinise them before they come into effect. The late publication of regulations has been one of the main complaints of backbenchers during the pandemic so far. With some new rules – such as those on the ‘rule of six’ – coming into effect less than an hour after being published, it has been extremely difficult for businesses and private individuals (and indeed ministers) to know what rules they are supposed to be following.     

The government should promise MPs more time to scrutinise regulations

On top of its existing commitment to a vote, the government should promise (in all but the most exceptional circumstances – for example when parliament is not sitting) to lay regulations before the House on the day they are publicly announced and at least three days before they come into force. This should apply to all coronavirus regulations – including those made under legislation other than the Coronavirus Act – and those creating local lockdowns as well as England and UK-wide restrictions.

The government should also include provision in any new regulations it makes for regular renewal by parliament. This would mean that MPs could not only decide whether to introduce restrictions but also, further down the line, whether they wanted to keep them in place. Whereas the original country-wide lockdown regulations had to be reviewed by parliament every three weeks, the current regulations governing self-isolation only have to be reviewed after six months. A provision for more regular renewal would provide a backstop if the government felt, at any point, that the situation was moving so fast it could not allow for prior scrutiny.

Increased scrutiny would result in greater understanding of new regulations – and higher levels of compliance

The purpose of publishing regulations in good time and requiring more regular renewal would not just be to satisfy the desire of MPs to have a say in the imposition of sometimes draconian restrictions on the lives of their constituents – important though that is. It would also allow for the content of the regulations to be discussed – on the floor of the House as well as in local and national media – in a way which would help clarify their effect for the citizens about to be subject to them. A better level of understanding would be likely to help secure higher levels of compliance. And, as with all scrutiny, publishing regulations before they come into force would allow for any inadvertent errors in the legislation or confusion arising from drafting to be rectified or clarified.

Perhaps most importantly, advance publication and more regular renewal would endow the exceptional measures being put in place by the government with greater legitimacy in the eyes of the public. And that could prove vital if it builds trust in government at this extraordinary time.    

Political party
Conservative
Administration
Johnson government
Publisher
Institute for Government

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