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The government should stop avoiding parliamentary scrutiny of its coronavirus legislation

The government should allow far greater parliamentary scrutiny of the laws that give effect to lockdown restrictions

As lockdown restrictions ease in England, Alex Nice says the government should allow far greater parliamentary scrutiny of the laws that give effect to them  

The UK government has introduced a new set of amendments to the ‘lockdown’ regulations in England to support the easing of restrictions on staying at home and meeting with friends and family. As of 1 June, there is no longer a restriction on the reasons for which you can leave your home. You can also meet outdoors with up to six people from outside your household, and you can meet them in your garden and share a BBQ.

But the government has introduced some important changes in how remaining restrictions are being enforced, and created new rules which restrict gatherings in private spaces. And it has done so without first putting a draft of the amended regulations before parliament. This approach is both unjustified and unwise.

These complex and contentious regulations would be improved by scrutiny

Easing lockdown means peeling away some restrictions, but it also means the regulations for what the public can and can’t do are becoming more complex and more contentious.

The government is easing regulations for some parts of the economy and not others, and for some types of people and not others. The amended regulations, for example, provide a legal definition of ‘elite athlete’. This group of people is now exempted from restrictions on public gatherings, which allows football and other sports to resume. Inevitably, increasing the number of exceptions increases the risk of mistakes and loopholes in the legislation, which parliamentary scrutiny and debate would help to mitigate. 

The government cannot argue that it has no time to consult parliament

Unlike the 'lockdown' regulatins, there is no reason for the government to move at such speed. The ‘lockdown’ regulations obliging people to stay at home in England were made in late March, by health secretary Matt Hancock, using secondary legislation under the Public Health Act 1984. Using secondary legislation meant that the regulations did not require a vote in parliament before they came into force (parliament did, however, have to approve the regulations within 28 sitting days, which it did on 4 May).

The government used a procedure to bring in the legislation ‘by reason of urgency’. This meant these regulations were made without putting a draft before parliament for scrutiny and debate. Given the scale of the emergency and the need for speed in putting the lockdown in place, the approach was understandable – although parliament was, at the time, debating the Coronavirus Act, a piece of primary legislation to provide the government with other powers to tackle the pandemic. The Coronavirus Act contained the lockdown powers for Scotland and Northern Ireland, but it wasn’t used for the laws to enforce lockdown in England. 

The government has now used the urgency procedure to amend the rules. Again, the changes must be approved by parliament within 28 days – but they are already in force. But the government does not face the same public health imperative to make amendments as fast as possible – the broad aim of the changes is, after all, to ease lockdown restrictions. Instead, the government could have allowed time for parliament to discuss and debate the changes before they were adopted, as argued by Raphael Hogarth in a previous Institute for Government report

Involving Parliament would increase trust in the government’s plans

Despite the unprecedented nature of the restrictions, there was initially strong public support for the lockdown. In recent weeks, however, confidence has fallen. The furore about whether or not Dominic Cummings, a senior advisor to the prime minister, may have broken lockdown rules has also damaged public trust and added confusion about what is law and what is guidance.

A willingness to engage with parliament and opposition parties would have allowed the government to hear and address concerns. This could have helped to add clarity, and restore trust, before the regulations were altered. The speed with which the lockdown was introduced is no longer essential, and easing the lockdown is a subject of national debate. How it is approached could have far-reaching consequences for people’s lives and livelihoods.  

The government has made clear it wishes to discontinue virtual parliamentary proceedings and get MPs back to Westminster as soon as possible, despite the impact this may have on the ability of some MPs to participate. But if the government is determined for Parliament to return to business as normal, then it should be giving MPs the chance to scrutinise, and improve, the regulations that impact on the lives of all their constituents.

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