Extraordinary coronavirus restrictions on personal freedom require proper parliamentary scrutiny

The prime minister has announced new social distancing restrictions in England to try to stem the latest rise in Covid-19 cases. From Monday, the new ‘rule of six’ means it will be illegal for people to meet others outside their household in groups larger than six, both indoors and outside.

The rationale for the changes is partly to simplify the rules, making it easier for people to understand and for the police to enforce. But it also marks a substantial tightening of restrictions on people’s personal freedom. And, once again, new emergency powers have been introduced by the government without parliamentary scrutiny and debate.

If not for the unprecedented crisis caused by the coronavirus pandemic, no liberal democracy would contemplate the measures now used by the government. They still include the means to prevent people from letting others enter their homes, they have stopped families seeing each other, prevented people from attending the funerals of their loved ones, or celebrating weddings, anniversaries and landmark birthdays and also provide the state with several means to lock up those suspected of being infectious. While many of these measures have met with strong public support and obedience, they are still extraordinary measures and must be matched with the kind of debate, scrutiny and democratic legitimacy that only parliament can provide.   

Parliament needs to be able to examine new lockdown legislation before it becomes law

Since the start of the Covid-19 crisis, the powers used by the government to curtail basic freedoms have been the government’s preferred tool in ensuring social distancing. The latest changes are probably a sensible improvement, reconciling a confusing mix of government advice – that people shouldn’t meet up in groups of more than six or no more than two households – and the law, which set the maximum legal gathering at 30 people.

But despite the huge effect these laws have on people’s daily lives, Parliament has had no chance to properly scrutinise them. The government has repeatedly used an emergency procedure to bring rules into force before putting the legislation to a vote in Parliament. That was understandable when the crisis was in its most acute phase. But the procedure has also been used when the government was easing the lockdown, for example increasing the number of people who could meet outdoors.

The new rules are another example of a total lack of democratic accountability. They were first reported in the press on Tuesday, mere hours after the health secretary had failed to mention them as he addressed MPs in the House of Commons. Lindsay Hoyle, the Speaker of the House of Commons, was furious that measures to restrict personal liberty were being announced through the media rather than in Parliament.

The Speaker is right to object. The new rules are not due to come into force until on Monday 14 September, six days after they were trailed to the media. The early stages of the crisis saw the government make urgent modifications to existing coronavirus rules when they were found to contain legal flaws: preventing those kinds of problems is Parliament’s role. But judging the need for major infringements on the public is also Parliament’s right; these laws must have democratic legitimacy.  

The six-month review of the Coronavirus Act should prompt a wider review of emergency powers

The same problems of inadequate scrutiny also apply to the Coronavirus Act – the one big piece of primary legislation to tackle the crisis, which was passed at breakneck speed in March. The main provisions of this Act, which gave the UK government and devolved administrations powers to restrict freedom of movement, close premises to slow the spread of the virus, and relax a wide range of regulations for public bodies, have a lifespan of up to two years. This is an extraordinarily long-time for emergency measures to remain in place. Yet MPs will not review this Act until the end of September. Worse still, MPs will only be able to vote on the emergency measures as a block – there is no formal power for parliament to vote to retain or repeal individual measures. As a Commons Select committee has just argued, this is inadequate given we are talking about legislation which is ‘striking in its curtailment of liberties’.    

The government must rectify this. It should cease using emergency procedures to bring in new laws, unless it can convincingly argue that the circumstances are truly urgent. But it should also use the six-month review of the Coronavirus Act to find time for a fuller debate of the entire use of emergency powers and to drop those that are not clearly still necessary.

The argument that the government should introduce emergency powers with limited scrutiny only held sway while there was no other option. But the acute phase of the crisis has passed, and with Parliament now sitting the government has no good argument why elected MPs cannot properly examine and debate those powers, how they are used and who decides where they apply. This scrutiny may be uncomfortable, but these are not the types of powers any government should find it too comfortable to wield – a point the prime minister said he felt deeply when he introduced them.