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Explainer

The extension of coronavirus powers and the “Brady amendment”

The Commons will vote on whether the government should be able to keep using the emergency powers it was given in the Coronavirus Act 2020.

Graham Brady

What is the Commons deciding on Wednesday?

The Commons will have a 90-minute debate and a vote on whether the government should be able to keep using the emergency powers it was given in the Coronavirus Act 2020. The Act, passed at speed in late March, gives ministers a range of powers, including in relation to statutory sick pay and potentially infected people.

Section 98 of the Act requires that these powers have to be renewed periodically. At the end of every six-month period after the Act was passed, the House of Commons must have the chance to debate and vote on the motion “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.”

What is the Brady amendment?

The Brady amendment is one of five tabled so far to the motion. It has been tabled by Graham Brady, a Conservative MP. 

Over 55 MPs have added their names to the amendment to signal their support. It makes support for the motion conditional on ministers ensuring “as far as is reasonably practicable that in the exercise of their powers to tackle the pandemic… Parliament has an opportunity to debate and to vote upon any secondary legislation with effect in the whole of England or the whole United Kingdom before it comes into effect.”

What is the amendment intended to achieve?

The amendment reflects the frustration of backbenchers that the government has not given them sufficient opportunity to debate and decide on the way it has used its powers in relation to the pandemic. The government has made frequent use of the urgency procedure contained in part 2A of the Public Health (Control of Disease) Act 1984 to make the regulations which, for instance, govern ‘local lockdowns’, the wearing of face coverings and the operation of businesses during the pandemic. This procedure allows ministers to bring regulations into effect first and only retrospectively ask for parliamentary approval.

Supporters of the amendment want to put pressure on the government to consult parliament before the regulations it makes using its powers come into effect.

Why does the government oppose the amendment?

The government argues that if the amendment were passed, the requirement to consult parliament could prevent it responding as rapidly as it would like to emerging trends in the pandemic. 

What would be the legal effect of the amendment?

If the motion itself were voted down, the government would have to, by law, end all the arrangements it has put in place using powers under the Coronavirus Act within 21 days. This would not affect the regulations the government has passed using other public health legislation such as the Public Health (Control of Disease) Act 1984, which include many of the emergency lockdown regulations to which some MPs have objected.  

There is doubt about the legal effect of the amendment. If the motion were amended and then passed it would not put the government under any statutory obligation to change the law. It would be a resolution of the House of Commons that ministers could choose to ignore. This would be legally permissible but politically risky.

If the government decided to respect the amended motion, there is uncertainty about whether it would do so in relation to all coronavirus-related regulations made under any legislation or just those made under the Coronavirus Act.

Is the amendment likely to be voted on?

It is up to the Speaker of the House of Commons, Sir Lindsay Hoyle, to decide whether to select the Brady amendment, or any of the other amendments, for debate and decision. It would be unusual for amendments to a motion of this kind, with wording specified under an Act, to be voted upon.

It is arguable that the wording of Coronavirus Act envisages the Commons making a binary ‘yes’ or ‘no’ decision on the motion; in passing the Act, parliament did not provide for the answer ‘yes, but…’. This reading would imply that amendments are not in order and should not be selected.

But, in weighing his decision, the Speaker may take into account the number of signatories to the Brady amendment (and, indeed, the other amendments tabled, including one from the official opposition) which suggest that the House wishes to have the opportunity to decide upon it. 

Is the government likely to offer a concession?

If the government thinks there is a chance that the amendment will be selected for debate and decision, then it may decide to offer a concession to persuade MPs not to vote for it. This would be likely to take the form of an undertaking about parliamentary involvement in the future use of powers to impose lockdown restrictions. However, any such undertaking would not be legally enforceable through the courts.

Legislature
House of Commons
Publisher
Institute for Government

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