Rule of law themes from the scrutiny of COVID-19 Regulations
23 July 2021
The Joint Committee on Statutory Instruments has today published its First Special Report of 2021-22.
The Report sets out several recurring themes that arose during the Committee's consideration of the large number of statutory instruments that addressed the COVID-19 pandemic. These themes raise rule of law issues that are of importance in a general context and not merely in relation to particular instruments.
The Committee identified the following core issues.
Sub-delegation powers included in COVID-19 instruments
The Report states that the presumption against the sub-delegation of legislative power is a long-standing and important principle and that the pandemic should not become an opportunity to depart from it unnecessarily. It also states that statutory instruments should not delegate legislative power unless expressly permitted to do so by the enabling power, and that enabling powers should not permit legislative sub-delegation as a matter of course.
Lack of clarity in criminal offences
The Report highlights that in some cases offences underpinning enforcement of COVID-19 regulations were drafted with insufficient clarity, or in such a way as to appear irrational. Criminal offences should be drafted in a way that provides certainty and is not likely to diminish respect for the law.
Guidance and the law
The Report notes the Committee’s support of the use of guidance and other forms of quasi legislation wherever appropriate, and notes that it is an effective tool for exerting influence rather than demanding compliance with hard-letter law. However, it also states that it is important that a clear distinction is made between guidance and requirements imposed by law. It is also important that guidance is not relied upon as a way of tightening up insufficiently certain provisions of legislation.
The Report acknowledges that the timing of legislating for the pandemic has obviously imposed significant pressures on the Government. While recognising these pressures, the Committee continues to expect the Government to ensure that people are given as much notice of legislation as possible, and that drafts are published in advance where appropriate. It is also important to ensure that explanatory material describing the effect of legislation does so accurately.
The Report states that where emergency legislation makes significant changes on a temporary basis, those changes should not be made permanent without careful consideration. In particular, where legislation affects fundamental rights, those rights should not be quietly diluted under the cover of the pandemic response.
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