Parliament must be afforded proper scrutiny of any Covid passport scheme

The government has sensibly opened up a debate on the complex and sensitive issue of whether and when people in the UK should be required to prove their Covid-19 status. Some form of ‘Covid passport’ scheme is certain to become a feature of international travel this year. But the debate still continues on whether people should be required to prove whether they have been vaccinated, had a recent negative Covid test or a positive test in the last six months (so offering natural immunity) in domestic settings.

The indications are that the government does want to introduce some form of Covid passports. Pilots are planned from June for mass events, and the government has not ruled out their use in theatres, nightclubs, pubs and restaurants. The key benefit from the government’s point of view is that the scheme could allow other restrictions – in particular social distancing – to be lifted more quickly.

Polling has found the idea popular among the public,[1] but concerns have been raised by MPs from across the political spectrum, including the influential Conservative Covid Recovery Group. Parliamentarians have posed questions about the practicalities of implementing such a scheme, the precedent it would set, risks to privacy and the potential for discrimination against those unable or unwilling to be vaccinated. The government’s ongoing review of what it is calling “Covid status certificates”, due to publish in June, will need to examine these issues and the balance of risks and benefits across a wide range of settings.

Parliament must get its say on Covid passports

How the government will establish a Covid passport scheme, and what say parliament have, will depend in part on the scheme’s design and enforcement. If the government does not want to provide for any sort of enforcement mechanism, then arguably it could set it up without using legislation at all. More likely it will use secondary legislation – making regulations under the Public Health (Control of Disease) Act 1984, as it has for earlier measures such as enforced self-isolation and face coverings.

But this does not mean parliament will get a say over whether and how a passport scheme is established. So far during the pandemic – much to the frustration of backbenchers – the government has made extensive use of the ‘urgent procedure’, which allows it to bring regulations made under the 1984 Act into force before they have even been published, let alone scrutinised by parliament. Last autumn, the Speaker accused the government of treating parliament with “contempt”, arguing that:

"all too often important statutory instruments have been published a matter of hours before they come into force and some explanations as to why important measures have come into effect before they can be laid before this House has been unconvincing and shows a total disregard for the House."

In response, the health secretary Matt Hancock made a commitment that “for significant national measures with effect in the whole of England or UK-wide, we will consult parliament; wherever possible, we will hold votes before such regulations come into force.” The government has not consistently delivered on this commitment. The regulations providing for the England-wide Christmas lockdown, for example, were not debated until MPs had returned from recess in January.

An England-wide Covid passport scheme would certainly qualify as a “significant national measure”. And for something so controversial, a short debate and vote on a piece of secondary legislation would not be sufficient scrutiny.  

Scrutiny of secondary legislation is inadequate for such a contentious proposal

Under the usual rules for secondary legislation, the maximum scrutiny available for regulations of this kind in the Commons will be a 90-minute debate, followed by a straight vote for or against. Secondary legislation cannot be amended, so MPs will have to either accept or reject the proposals. Although it is extremely rare for secondary legislation to be voted down, it could happen in this instance – particularly if the opposition parties decided to join Conservative rebels in voting against the measure.

The Public Health Act was designed to allow ministers to respond rapidly to health crises. But it is questionable whether the parliament that passed the Act could have anticipated the sort of prolonged restrictions on personal liberties imposed over the past year – or that the involvement of parliament would be restricted so significantly.

The idea of Covid passports raises fundamental questions of liberty and privacy on which MPs should have their say – on behalf of the public. If the Johnson government attempts to introduce a scheme using secondary legislation, there is a risk that a measure it sees as important for tackling the pandemic will be voted down altogether. If instead the prime minister creates the opportunity to win over his backbenchers, his policy will be more secure in the long run.

The government should put forward a short Covid passports bill

If the government does choose to introduce Covid passports, it should do so using primary legislation – bringing forward a short bill to ensure MPs and peers have the opportunity to debate the principle and suggest amendments. Last year, the government acknowledged that MPs’ scrutiny had improved other primary legislation relating to Covid-19 by identifying issues that – in its haste – it had not thought about. Such productive scrutiny can only be a benefit now, with issues as important as both virus control and vaccine confidence at stake.