Big Brother Watch – written evidence (CIC0227)

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

1.     We welcome the opportunity to submit written evidence to this important inquiry.

2.     Since the Coronavirus Bill was first introduced, we have been scrutinising emergency powers, providing policy analysis and emphasising the importance of close parliamentary scrutiny. We have been producing monthly reports on the Government’s response to Covid-19, emergency powers and their impact on civil liberties and parliamentary democracy and have circulated the reports to parliamentarians.[1]

3.     In this briefing, we aim to provide the Committee with responses to inquiry questions 1–3, 5, 7-9, 13 and 15.

The use of emergency powers during the Covid-19 pandemic

1. Does the Coronavirus Act 2020 strike the right balance between powers for the Executive and parliamentary oversight and approval?

4.     The greater the powers a Government requests, the greater scrutiny, caution and safeguards the powers require. However, this Government rushed a 342-page Act, with a range of new offences and unprecedented powers that will last up to 2 years, through Parliament in three days.

5.     The parliamentary debate on the (then) Bill did not provide meaningful scrutiny. Parliamentarians were  naturally  mindful  of  the  urgency  of  the  situation  and  the  gravity  of  the  request  to equip the Government with the powers it requested to protect public health – but were also concerned by the short time afforded to consider the incredible powers within. We are concerned that  there  was  more  time  available to  engage  Parliament  on  the legislative response to the emergency than the three days afforded. The Health Secretary Matt Hancock delivered the Bill to the House of Commons with the apparent reassurance that,

6.     “... the Bill has been drafted over a long period, because it started on the basis of  the pandemic  flu  plan  that  was  standard  before  coronavirus existed  and  has  been worked on over the past three months at incredible pace by a brilliant team of officials right across Government.”[2]

7.     However, this raises the question as to why Parliament was not engaged sooner in those three months.

8.     The undermining of parliamentary scrutiny has set a poor precedent – through this period we have seen many pieces of extremely significant legislation passed with no parliamentary debate, or debate which has come far too late to be of any value. For example, on the same day The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 came into force, the House of Commons was debating The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 whilst the House of Lords simultaneously debated The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020. This is absurd and highlights how during this period meaningful scrutiny of Government powers has been desperately lacking.

9.     Some of the most extreme powers in the Act, notably those outlined in Schedules 20 and Schedule 21 which provide for potentially indefinite arbitrary detentions and the prohibition of protests and gatherings, are simply activated by Ministers. There is little to no opportunity for parliamentarians to monitor or alter these powers. In particular, the six-month renewal motion for the Act is an all-or-nothing motion in the House of Commons, and the Speaker accordingly did not permit votes on tabled amendments to the motion that would have expressed MPs’ desire to terminate provisions in the Act.

10. The other ‘safeguard’ in the Act is a two-monthly Ministerial report on the non-devolved powers in the Act. These reports are not debated by parliament and little mention has been made of them. They are demonstrably an insufficient mechanism to provide the necessary level of scrutiny. The report needs only outline which powers have been used and whether the Minister still considers them necessary, without providing an evidenced justification. For example, detention powers provided in Schedule 21 to the Act have resulted in the extraordinary, unprecedented record of 100% unlawful prosecutions and an ongoing CPS review – yet, the two-monthly reports have failed to even disclose this and maintain that the failed powers are necessary. A fuller assessment of the human rights impact of the measures used under the Act, including proportionality, would be  essential to ensure adequate scrutiny. Independent and parliamentary analysis of how and why powers have been used would also be a significant improvement.

11. The Coronavirus Act also allows for significant amounts of secondary legislation to be made under the made affirmative procedure and the negative procedure. For example, statutory instruments that postpone elections and referendums (s. 61) can be made through the negative procedure and contain no link to public health emergencies or coronavirus. It is not clear why such a significant power does not require Parliament scrutiny.

12. The Act also contains significant Henry VIII powers. For example, s.22, which deals with the appointment of temporary Judicial Commissioners, contains powers which amend the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016. Despite this, legislation made under s.22 is only subject to the negative procedure. Indeed, on 26th March 2020, a new statutory instrument was made under the Coronavirus Act: The Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020. This allows for the appointment of temporary Judicial Commissioners to approve authorities’ use of investigatory powers including highly intrusive bulk powers. These Regulations bypass the requirement to consult senior figures on appointments. Such an amendment should not be subject to the negative procedure.

13. These procedures mean that the lockdown period has been effectively dictated by Ministerial rule, in a manner that contradicts the principle of parliamentary sovereignty – the heart of our constitutional democracy.

2. What existing powers (other than those in the Coronavirus Act 2020) might have been used to deliver the Government’s response to the Covid-19 pandemic? Was the Coronavirus Act 2020 necessary to implement the Government’s response to the pandemic?

14. We believe the Civil Contingencies Act 2004 (CCA) should have been used to deliver the Government’s pandemic response.

15. The CCA is permanent legislation designed precisely to provide a mechanism by which regulations can be introduced in times of national emergencies. The Covid-19 pandemic evidently meets the criteria of ‘emergency’ as set out in the CCA (s.19(1)(a)). As such we believe it should have been used to manage the pandemic. Under the CCA, emergency regulations must be considered by Parliament within 7 days of being laid and lapse no longer than 30 days after they are made (CCA s.26(1)(a)). This would have provided for more thorough and frequent parliamentary scrutiny. It is vital that emergency powers carry emergency time limits.

16. The CCA allows ministers to make emergency regulations if there is an emergency “which threatens serious damage to human welfare”, including “loss of human life… human illness or injury” in the UK. The powers to make emergency regulations are broad, allowing for the making of “any provision which the person making the regulations is satisfied is appropriate for the purpose of…protecting human life, health or safety”, among others.

17. The emergency regulations allowed under the CCA include measures which:

• prohibit, or enable the prohibition of, movement to or from a specified place;

• require, or enable the requirement of, movement to or from a specified place

• prohibit, or enable the prohibition of, assemblies of specified kinds, at specified places or at specified times;
• prohibit, or enable the prohibition of, travel at specified times;
• prohibit, or enable the prohibition of, other specified activities;

18. as well as the ability to create offences of failing to comply with any of the above regulations.[3]

19. When questioned by Conservative Adam Afriyie MP, “is there a particular reason why the Civil Contingencies Act 2004 was not used? It already contains many of the safeguards that I suspect the House will wish to see”, the Leader of the House Jacob Rees-Mogg claimed it could not be used as, “the problem was known about early enough for it not to qualify as an emergency under the terms of that Act.”[4] This is plainly wrong.

20. David Davis MP requested on a Point of Order the opinion of the Speaker’s Counsel as to whether the CCA could have been relied on for emergency regulations for the present crisis.[5]The Speaker’s Counsel was unequivocal:

“The 2004 Act (which I wrote), including the powers to make emergency provisions under Part 2, is clearly capable of being applied to take measures in relation to coronavirus.”[6]

21. Michael Gove, when speaking to this Public Administration and Constitutional Affairs Committee, reaffirmed that Government’s position that the CCA could not be used as it is “designed to be used for something that is unforeseen.”[7] In response, Ronnie Cowan MP pointed out the irony of Gove defending Government failings such as PPE shortages on the basis that the virus had moved so quickly, whilst simultaneously claiming that the Government was too prepared for the virus to use the CCA:

22. “I am staggered to hear that this is not a bolt out of the blue. Given the speed with which this virus has ripped through the United Kingdom, and has killed over 20,000 people, are we saying we were not surprised? If we were not surprised by it, why were we not better prepared?”[8]

23. Furthermore, the Committee Chair asked:

24. “The Civil Contingencies Act exists for contingencies. If this is not an occasion on which that would be necessary, when would be?”[9]

25. However, Gove maintained that the Government was too prepared for the pandemic to rely on the CCA. Yet, the Coronavirus Act was worked on for three months prior to being laid before Parliament for rushed three-day scrutiny. The Committee concluded that it “was not convinced that the Civil Contingencies Act 2004 could not have been used in response to COVID-19.”[10]

26. By pushing new legislation onto the statute books rather than laying regulations under the CCA, the Government has been endowed with extreme powers and minimised parliamentary scrutiny of them. This creates the real risk of enduring and excessive emergency powers.

3. How have the measures taken by the Government to address the pandemic been implemented, i.e. which aspects of the lockdown were set out in legislation, regulations and guidance? What effect has this had on the clarity of the measures? 

27. The Government’s lack of distinction between what is law and what is guidance has been repeatedly criticised and has led to arbitrary police enforcement across the UK. Whilst it is understandable that the Government wishes to stress the importance of its guidance for public health reasons, the ambiguity around what people “can” and “should” do corrodes the rule of law, making people unsure if their actions will lead to criminal sanction.

28. There are countless examples of Ministers and police blurring the line between what is a legal requirement and what is public health advice. This began even before the first set of Health Protection Regulations were introduced on 26th March 2020, with police officers enforcing the Prime Minister’s ‘instructions’ with no legal basis.[11] This continued with confusion around the amount of exercise permitted, whether or not people were permitted to leave their ‘local area’ and what constituted ‘essential items’ that could be purchased. We have extensively catalogued these incidents in our monthly reports.[12]

29. The ‘rules’ around social distancing are another example. The Prime Minister announced in summer, “(…) we can change the 2-metre social distancing rule from 4 July.” However, the 2-metre ‘rule’ has always been guidance in England, not a legal requirement. It is perhaps little surprise, then, that police – even at the most senior level – appear to have understood the 2-metre distancing as a legal requirement. On 26th June, the National Police Chiefs’ Council (NPCC) issued a press statement which said, “From 1 June, it has been lawful for groups of up to six people to meet outdoors in England (as long as social distancing measures are maintained).”[13] However, at the time it was lawful for groups of six people to meet outdoors regardless of whether social distancing is observed. It is alarming and damaging to the rule of law that the police’s understanding of their enforcement responsibilities is so untethered to the law.

30. This confusion not only damages the rule of law and risks arbitrary enforcement of regulations but poses a threat to public health. When people are unable to understand what the rules are, they cannot hope to follow them.

Criminalisation and enforcement 

5. What new criminal offences have been introduced as part of the Government’s response to the pandemic? Is criminalisation a proportionate, justified and appropriate response? 

31. The Government’s approach to preventing the spread of coronavirus has increasingly relied on criminal sanctions and constant threats of ‘tougher enforcement’ of the rules. It is disproportionate, unjustified and inappropriate. It is also damaging to the rights  of citizens and balance of power between the state and citizen. The constitutional impact cannot be understated.

32. Guidance that has proved effective so far has been put into legislation, creating dozens of new criminal offences which carry huge fines and resulting in controversy and disillusionment for many. Since March, in England there have been three sets of national ‘lockdown’ regulations, a patchwork of local regulations and a three tier regulations, all of which have been amended multiple times and which contain a myriad of complicated restrictions and exemptions. The requirement to self-isolate has been introduced[14], as have significant restrictions of businesses, which include the requirement for hospitality venues to prevent singing and dancing, ensure social distancing and display posters about face covering requirements.[15] Contact tracing requirements have been made law across the United Kingdom, with fines for venues that fail to collect details or even fail to display QR codes.[16] There have been 14 statutory instruments relating to face coverings in England and Northern Ireland alone, while Wales and Scotland have placed masses of restrictions in single statutory instruments, meaning that devolved governments are unable to vote against specific requirements without voting against the entire piece of legislation.

33. This obsession with using criminal law to manage public health seeks to shift the blame for rising case numbers onto individuals, rather than Government failures – but we cannot police our way out of a pandemic. A public health crisis requires a public health response, not a public order response. Criminalising ordinary behaviour only leads to frustration and mistrust, and decreased willingness to follow rules. It is important to note that around 50% of fixed penalty notices have been unpaid across England and Wales, leading to a pending prosecution crisis.

34. Government guidance has been adhered to by the vast majority of people and effective guidance should be relied on to protect public health, instead of excessive and draconian fines and criminalisation.

7. What factors led to wrongful arrests and convictions under the emergency powers and how might these have been avoided?

35. Some of the most significant injustices that have stemmed from the pandemic are the unlawful prosecutions under emergency laws. The majority of these have been under Schedule 21 of the Coronavirus Act – a draconian power with gives police officers, immigration officers and public health officials the power to forcibly detain and take biological samples from anyone they consider to be “potentially infectious”. Schedule 21 is not an effective public health provision but an excessive detention power for police and immigration officers, ripe for arbitrary use. The generalised power to detain any “potentially infectious” individual, particularly without necessitating the advice of a public health officer or adequately providing tests, has not only resulted in injustice and rights infringements - it is damaging public trust in authority at a critical time and incurring risks rather than benefits to public health.

36. After several high-profile unlawful uses of Schedule 21 by police to arrest, detain and charge innocent individuals, the Crown Prosecution Service announced it would begin unprecedented monthly reviews into the prosecutions under emergency legislation.

37. Every review has found a 100% unlawful prosecution rate under Schedule 21 of the Coronavirus Act. It is plainly unacceptable that healthy and innocent people have been charged, exclusively wrongly, under this extreme law for seven months. There is no evidence that these powers are necessary, yet overwhelming evidence that they endanger rights and should be repealed.

38. Reviews have also found a 10% unlawful prosecution rate under the Health Protection Regulations, which is it equally unacceptable. It also suggests that many of the Fixed Penalty Notices handed out under these regulations may also be unlawful.

39. These failures are the direct result of poorly drafted legislation which has been rushed through Parliament with little to no scrutiny. Such draconian measures are characteristic of Ministerial rule. The ineffective safeguards in the Coronavirus Act mean there is little opportunity, other than voting agains the renewal of the whole Act, to ameliorate the situation.

40. Further, the confusion around the contents of law, and the differences between law and guidance has led to arbitrary enforcement and unlawful prosecutions.  The real-world implications of the Government’s cavalier approach to parliamentary scrutiny are plain.

Promulgation

8. To what extent have the legal requirements imposed on people during lockdown been clear and accessible to members of the public? How should the new measures introduced in response to the pandemic be communicated and explained to authorities (e.g. local government, police, border force, regulators), businesses and members of the public? 

41. The contempt the Government has shown for parliamentary scrutiny not only damages the rule of law and trust for democracy, but also makes the ever more complex rules harder to understand and follow. This ultimately undermines public health efforts.

42. Currently, an average of 8 new pieces of coronavirus legislation have been laid each week since March.[17] Rules are found in a wide range of statutory instruments, most of which have been amended multiple times. Without checking the Government’s website daily, it would be impossible for members of the public to remain up to date on new restrictions, many of which carry serious financial penalties and potential criminal convictions.

43. The result has been profound confusion about what is Government advice, what is law and what is guidance from health officials. One study (conducted during the period in which the Tier Regulations were in force) found that:

• 1 in 5 adults did not know what tier their area was in
• Only 12% knew the correct amount of time a person is required to self-isolate if they receive a positive coronavirus test result
• 53% said they did not know whether they were allowed to visit other UK countries
• 20% said they did not know whether they were currently allowed to visit their local pub[18]

44. When giving evidence to the Home Affairs Committee, police chiefs admitted they did not know the rules that were currently in force.[19] Government Ministers have also failed to answer questions on restrictions[20], and in one highly criticised incident, the Prime Minister demonstrated that he did not understand the Regulations just imposed on North East England.[21]

45. A key tenet of the rule of law is that laws are accessible and foreseeable – without clarity, enforcement and punishment become arbitrary. As Dr Ronan Cormacain from the Bingham Centre for the Rule of Law wrote, “Even during a pandemic, the Rule of Law matters. Citizens are entitled to legal certainty.”[22]

46. The Government must stop relying on complex and ever-changing criminal sanctions to enforce restrictions. Instead, clear, widely publicised and easily accessible guidance should be made available across a range of mediums and languages.

Devolved and local government

9. What have been the consequences of legal divergence between the constituent parts of the United Kingdom in responding to the pandemic?

47. As the pandemic has unfolded, the Government has been increasingly unable to command a UK-wide response. Devolved powers have each adopted their own measures, managed lockdowns at their own pace, and developed their own tests for lifting restrictions. This makes it impossible for the Prime Minister, or indeed anyone in central Government, to speak to the country and communicate the rules as a whole.

48. One of the key principles in the Government’s recovery strategy is to pursue “work in close cooperation with the devolved administrations in Scotland, Wales and Northern Ireland to make this a UK-wide response: coherent, coordinated and comprehensive.”[23] In reality, there has been a divergent four-nations response. We have documented extensively the constantly shifting approaches to lockdowns across the four nations, often with each nation’s legislation and guidance being at odds with each other as well as at odds with the rest of the UK.[24] Currently there are vast differences in where an individual can travel to, what businesses can remain open, how many people they can meet, and the reasons they are allowed to leave their home.

49. The fact that these complex Regulations diverge across the nations of the UK makes it incredibly difficult, arguably impossible, for any citizen of the UK to understand and observe the differences. The stakes are very high – these Regulations must be accessible, foreseeable and practicable for the public at large if the purported benefits are to be achieved. Adherence to the lockdown Regulations requires major behavioural change on a scale never seen before – but this can only happen if the law is clear and coherent.

Parliamentary scrutiny 

13. To what extent has Parliament been able effectively to scrutinise the statutory instruments related to the pandemic measures? What additional steps ought to be taken to ensure effective scrutiny of emergency statutory instruments in future?  

50. Since March, 295 coronavirus statutory instruments have been passed in England.[25] These instruments make a significant impact on every area of our lives, yet only 13 of these (4.4%) used the draft affirmative procedure, requiring parliamentary approval before an instrument becomes law.

51. Many permanent legal changes in areas unrelated to the pandemic are being brought in under the cover of emergency legislation. Lord German, when debating the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 in the House of Lords noted that a significant and permanent amount of the Regulations had nothing to do with coronavirus:

1. “(…) two completely separate matters are addressed by these Regulations and only one is related to the coronavirus pandemic. The part of the legislation covering the building of additional storeys is both permanent and totally unrelated to the present pandemic, so it is quite legitimate to ask the Minister to explain why this planning law change is misrepresented as a response to the coronavirus health issue.”
2. “This is a perfect example of a major policy change being side-slipped through Parliament, first, under the cover of a response to the coronavirus crisis and, secondly, by the use of the negative procedure.”[26]

52. Statutory instruments have been widely used to introduce vast changes to every area of our lives, meaning that these instruments cannot be amended and mostly receive only retrospective approval.

53. Timely parliamentary scrutiny of emergency legislation is essential. Serious delays have become a national scandal with politicians, judges, and commentators from across the political spectrum pouring scorn on the Government’s continued determination to rule by diktat.

54. Lady Hale, the former President of the Supreme Court, wrote that Parliament had “surrender[ed] control to the government at a crucial time (…) My plea is that we get back to a properly functioning constitution as soon as we possibly can.”[27]

55. Former Speaker John Bercow told BBC Radio 4:

3. “Debate, scrutiny and votes are the lifeblood of a pluralist system.
4. “Without them – and they are tremendously important safeguards – what you have is Government by executive fiat and it seems to me that there is a world of difference between the situation six months ago and that which pertains today.
5. “If governments feel that they can bypass or circumvent or stymie the voice of Parliament, if they don’t really feel the need to consult the legislature anymore, well then they will just do things their own.”[28]

56. The Health Secretary gave a loose promise that prior votes will be offered only on “significant” national laws “where possible”, merely restating the default role of parliament as though it were simply a gentleman’s agreement to be grateful for. This was no concession, but a shattering reflection of how deeply power has been vested in Ministers’ hands.

57. All new measures which restrict the public’s rights and liberties must be debated prior to their implementation, with ample time given for each debate. This cannot apply just to national regulations as the Health Secretary stated – the restriction of freedoms should deserve parliamentary consideration, no matter where they occur.

15. What processes are there for securing renewed Parliamentary oversight and control of the legislative agenda once the urgency of a given emergency has diminished? Are the sunset provisions and other safeguards provided for in the Coronavirus Act 2020 and associated regulations sufficient for this purpose? 

58. The Coronavirus Act endures for at least two years (s.89). Powers exercised under the Act can last for six further months, meaning the Act could last 2.5 years; and the Act gives far-reaching powers to ministers to extend the Act beyond two years simply by regulation (s.90). This is an extraordinary expansion of ministerial power and an unacceptably long time for exceptional, emergency powers to be at the disposal of Government.

59. To maintain the presumption against exercise of emergency powers, they should not be open to use for such a long period of time. Powers exercised under the Act should be subjected to a strict sunset clause – ideally monthly, as per the Civil Contingencies Act 2004 - to ensure prompt review of the necessity and proportionality of such extreme measures. Moreover, the Civil Contingencies Act should have been used for any legislation needed to respond to the pandemic swiftly during the emergency period.

18/11/2020