The legislative response to the Covid-19 pandemic

¶13.13. COBR resolved on 5 February 2020 to develop plans for "an emergency bill to support the UK's response".¹⁸¹⁸ INQ000056215_0008 para 9; see also INQ000425524_0003 para 8 Two days later, Matt Hancock MP (Secretary of State for Health and Social Care from July 2018 to June 2021) was briefed on the draft "Pandemic Influenza Emergency Bill".¹⁹¹⁹ INQ000106098_0001; INQ000049346_0001 This had its genesis as one of the lessons of Exercise Cygnus (an October 2016 exercise assessing the UK's preparedness and response to a pandemic influenza outbreak) and aimed to introduce legislative and regulatory changes swiftly in response to a severe influenza pandemic.²⁰²⁰ INQ000144792_0084-0085 para 264; see also Exercise Cygnus Report: Tier One Command Post Exercise Pandemic Influenza – 18 to 20 October 2016, Public Health England, 2017 (https://www.gov.uk/government/publications/uk-pandemic- preparedness/exercise-cygnus-report-accessible-report; INQ000056232_0007-0008), as discussed by the Inquiry in Module 1: The resilience and preparedness of the United Kingdom, UK Covid-19 Inquiry, July 2024, Chapter 5 (https://covid19.public-inquiry.uk/ documents/module-1-full-report)Show full note

¶13.14. Clara Swinson (Director General for Global and Public Health at the Department of Health and Social Care from 2016 and Chair of the Pandemic Influenza Preparedness Programme Board from 2017 to 2022) explained that the preparatory work carried out for the purposes of a draft "Pandemic Flu Bill" played a key role in ensuring that there was sufficient time to pass what later became the Coronavirus Bill.²¹²¹ INQ000273634_0027 para 87 She further explained that an expedited timetable to take the Bill through the UK Parliament was drawn up to ensure that the required powers would be in place a few weeks prior to the peak of the pandemic, in a reasonable worst-case scenario.

¶13.15. The first Covid-19 laws – The Health Protection (Coronavirus) Regulations 2020 – were, however, introduced in England on 10 February 2020 through secondary legislation, using the powers in the public health legislation described above.²²²² The Health Protection (Coronavirus) Regulations 2020 (https://www.legislation.gov.uk/uksi/2020/129/contents). The Health Protection (Coronavirus) (Wales) Regulations 2020 (https://www.legislation.gov.uk/wsi/2020/308/contents) were made at 15:15 on 17 March 2020, laid before the Welsh Parliament at 17:30 on that day and came into force on 18 March 2020. This was the first Covid-19-related piece of legislation made in Wales.Show full note These Regulations allowed individuals exhibiting coronavirus symptoms upon arrival in the UK to be screened and potentially detained if suffering from the "Wuhan novel coronavirus".²³²³ Explanatory Memorandum to the Health Protection (Coronavirus) Regulations 2020, para 2.1 (https://www.legislation.gov.uk/uksi/2020/129/pdfs/uksiem_20200129_en.pdf) They also empowered the Secretary of State to declare an emergency and activate emergency powers.²⁴²⁴ The Health Protection (Coronavirus) Regulations 2020, regulation 3 (https://www.legislation.gov.uk/uksi/2020/129/regulation/3/made) Mr Hancock did so on 10 February 2020, designating several 'isolation' facilities, and also Wuhan and Hubei province in China, as 'infected areas'.²⁵²⁵ INQ000232194_0042-0043 paras 178-180; see also 'Secretary of State makes new regulations on coronavirus', Department of Health and Social Care, 10 February 2020 (https://www.gov.uk/government/news/secretary-of-state-makes-new-regulations-on- coronavirus; INQ000215586)

¶13.16. A legislative policy paper, presented to COBR on 18 February 2020, indicated that "a full response to an outbreak of Covid-19 in the UK will require additional UK legislation".²⁶²⁶ INQ000049396_0001 para 1 Final decisions regarding the provisions in the proposed emergency bill, the timing of its introduction and its parliamentary handling would be made by

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¶10 Downing Street and the UK government's Parliamentary Business and Legislation

¶Committee.²⁷²⁷ INQ000049396_0001 para 2 The COBR discussion on the same day reinforced the point that any emergency legislation would only be pursued in a reasonable worst-case scenario and that it was not for COBR to decide whether to legislate.²⁸²⁸ INQ000056227_0006-0007 paras 11, 13 However, COBR acknowledged the importance of ensuring that any bill covered all four nations, and work was set to begin immediately and at pace.²⁹²⁹ INQ000056227_0006-0007 paras 12-16 The minutes also indicated an assumption that legislation would not be needed before the end of March 2020, despite an estimate that the period from sustained transmission to peak could be as short as three months.³⁰³⁰ INQ000056227_0007 para 17

¶13.17. The assumption made in February 2020 – that legislation might not be required until the end of March 2020 – was not, on the face of it, inconsistent with some of the modelling available at the time. However, it underestimated the likelihood that significant legal interventions would be needed well before the peak, in order to mitigate exponential growth in infections. As a result, emergency legislation had to be developed at speed in mid-March 2020, limiting the opportunity for scrutiny or consultation.

¶13.18. On 26 February 2020, COBR agreed that an emergency bill was the appropriate legislative vehicle with which to address the pandemic, noting that the "basic principle" of the Civil Contingencies Act 2004 was that "if you can foresee the emergency then you should take forward other legislation".³¹³¹ INQ000056216_0006-0007 para 11; see also INQ000049396_0001 para 1; INQ000232194_0067-0068 para 285 This approach was also taken in a Civil Contingencies Secretariat paper presented to COBR on 2 March 2020.³²³² INQ000056153 Michael Gove MP (later Lord Gove), Chancellor of the Duchy of Lancaster from July 2019 to September 2021 and Minister for the Cabinet Office from February 2020 to September 2021, described the Civil Contingencies Act 2004 as "designed to deal with events like a terrorist attack which paralyses national infrastructure".³³³³ Michael Gove 28 November 2023 111/6-8

¶13.19. Mark Drakeford MS, First Minister of Wales from December 2018 to March 2024, understood at the time:

" that the Coronavirus Bill would mirror the essential scheme of the Civil Contingencies Act and that the primary decision-making power would remain with the UK Government, to be implemented by the devolved governments".³⁴³⁴ INQ000273747_0008 para 23; see also INQ000273747_0007, 0008, 0009, 0018 paras 22, 26, 52

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¶Mr Drakeford's "very clear impression" was that the choice of legislation under which emergency powers would be exercised was a decision for the UK government.³⁵³⁵ Mark Drakeford 13 March 2024 33/19-21

¶Nicola Sturgeon MSP, First Minister of Scotland from November 2014 to March 2023, agreed that the decision to use:

" public health legislation, rather than the Civil Contingencies Act 2004 … as the legal framework governing the UK Government's response to Covid-19 was made by the UK Government".³⁶³⁶ INQ000339033_0196 para 615

¶Similarly, it was also understood in Northern Ireland that emergency powers would be included in legislation passed by the UK Parliament.³⁷³⁷ INQ000391014_0003 para 1

¶13.20. Ahead of the COBR meeting on 2 March 2020, chaired by Boris Johnson MP (Prime Minister from July 2019 to September 2022), the Civil Contingencies Secretariat provided a briefing note on whether the Civil Contingencies Act 2004 could lawfully be used to respond to the pandemic.³⁸³⁸ INQ000056153 It referred to "a doubt that the 'urgency' safeguard … would be met by declaration of a Covid-19 Reasonable Worst Case Scenario" and that guidance stated that if a bill could be fast-tracked through the UK Parliament, it "must be used in preference".³⁹³⁹ INQ000056153_0001 ('Summary', 'Triple Lock Criteria') As there would likely be an eight-week lead time before the peak of the pandemic, this was thought sufficient to pass a dedicated bill. The note cautioned against using the Civil Contingencies Act 2004, concluding:

" The consequence of relying on the CCA [Civil Contingencies Act 2004] may therefore be to take on unnecessary legal risk."⁴⁰⁴⁰ INQ000056153_0002 ('Parliamentary Scrutiny')

¶13.21. The note also identified practical and political considerations, including that the use of the Civil Contingencies Act 2004 would require "substantial and repeated Parliamentary scrutiny" (ie regulations would be subject to approval within 7 days and renewal every 30 days).⁴¹⁴¹ INQ000056153_0001 ('Summary') The first use of the Act was said to be "likely to be controversial and might be seen as an overreaction or failure to prepare".⁴²⁴² INQ000056153_0001 ('Background – Civil Contingencies Act (2004)') It acknowledged the legal risk that emergency regulations made under the Act, as secondary legislation, "could be struck down" by the courts if there was a successful challenge on the basis that the urgency requirement had not been met. However, the note did not offer a definitive legal assessment and the language used was cautious rather than absolute. Instead, the primary argument for passing a dedicated bill was to ensure "prior Parliamentary scrutiny"; it was also said to be "less vulnerable to legal challenge".⁴³⁴³ INQ000056153_0002 ('Triple Lock Criteria') Despite this, significant restrictions were later imposed – not through a dedicated bill but through secondary legislation, which limited the scope for prior scrutiny. The route chosen was also subject to legal challenge.⁴⁴⁴⁴ See R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 (https://www.bailii.org/ew/cases/EWCA/Civ/2020/1605.html; INQ000548388)

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¶13.22. The briefing for Mr Johnson as Chair of COBR, prepared by the Cabinet Office in advance of the 2 March meeting, acknowledged:

" The Leader of the Commons in particular would prefer that Part 2 of the Civil Contingencies Act is used to take these powers. The CCA is intended for use in no-notice crises. In the case of a pandemic – a rising tide event – the 'urgency' test in the Bill means the Bill should be taken forward through a normal but rapid Parliamentary process."⁴⁵⁴⁵ INQ000056176_0004

¶The briefing recommended passing the Bill instead of relying on the Civil Contingencies Act 2004. It noted that using the Act "would be the first use of these very extreme powers, and would undoubtedly signal lack of grip".⁴⁶⁴⁶ INQ000056176_0004 This reflects a recurring concern in government decision-making at the time about the political optics of relying on such broad, extraordinary powers.

¶13.23. At its meeting on 2 March 2020, COBR concluded that "the Civil Contingencies Act (2004) could not be used in place of a new bill as there is still time to legislate" and agreed to proceed with the Coronavirus Bill.⁴⁷⁴⁷ INQ000056217_0006 paras 11-13; INQ000215035_0024 para 95 The Bill's contents were agreed at a subsequent COBR meeting on 11 March 2020.⁴⁸⁴⁸ INQ000056220_0007 para 12

¶13.24. Mr Hancock told the Inquiry that using the Civil Contingencies Act 2004:

" was inappropriate for two reasons: first, it could only be legally binding for 'unforeseen' events, and there was legal uncertainty over whether that applied to the circumstances of the spread of Covid-19, and in any event it could only be used for 30 days, and any lockdown was likely to last longer than that".⁴⁹⁴⁹ INQ000232194_0067-0068 para 285

¶Ms Swinson agreed that the route chosen by the UK government:

" provided greater legal certainty … than CCA [Civil Contingencies Act 2004] regulations would have, as the latter would have required Parliamentary approval within seven days (if Parliament was still sitting) and would have had to be renewed every 30 days".⁵⁰⁵⁰ INQ000273634_0027 para 84

¶13.25. It is clear that, in addition to a concern about complying with the urgency requirement, the UK government was conscious of the time limits for restrictions imposed under Part 2 of the Civil Contingencies Act 2004.

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¶13.26. Parliamentary time for the Bill was allocated for March 2020.⁵¹⁵¹ INQ000056217_0007 para 2; INQ000215035_0024 para 95 Initially planned for introduction on 24 March, the timetable was revised to allow for "9 days in Parliament" and the Coronavirus Bill was introduced on 19 March.⁵²⁵² INQ000049446_0002 para 8 Ms Swinson told the Inquiry: "[T]he Government believed it was both important and possible in the timeframe to provide an opportunity for Parliamentary scrutiny."⁵³⁵³ INQ000273634_0025 para 80

¶13.27. In fact, the passage of the Coronavirus Bill was fast-tracked and it completed its passage through both Houses of Parliament in just three sitting days.⁵⁴⁵⁴ The Coronavirus Bill spent one day in the House of Commons and two days in the House of Lords (see https://bills.parliament.uk/bills/2731/stages). The first debate took place at its second reading on 23 March 2020 and it received Royal Assent on 25 March, after completing its committee stage, report stage and third reading that same day. While the use of the fast-tracking procedure might have been justified given the uncertainty at the onset of the pandemic, it curtailed further parliamentary scrutiny of primary legislation, despite the prior acknowledgement of its importance.

¶13.28. The Coronavirus Bill was "introduced as emergency, temporary legislation", enabling "action in five key areas, where there were not powers under existing legislation".⁵⁵⁵⁵ INQ000273634_0026, 0029 paras 82, 91 It made several notable provisions, including those allowing for the:

fast-track registration of retired doctors, nurses and medical students to allow them to return to work;⁵⁶⁵⁶ Coronavirus Act 2020, Schedule 1 (https://www.legislation.gov.uk/ukpga/2020/7/schedule/1)
powers to detain and isolate potentially infectious people;⁵⁷⁵⁷ Coronavirus Act 2020, Schedule 21 (https://www.legislation.gov.uk/ukpga/2020/7/schedule/21)
authority to restrict gatherings, events and public movement;⁵⁸⁵⁸ Coronavirus Act 2020, Schedule 22 (https://www.legislation.gov.uk/ukpga/2020/7/schedule/22)
closure of schools, childcare facilities and public spaces; and 59
authority for various different directions from the Treasury, which were used to create schemes such as the Coronavirus Job Retention Scheme (known as 'furlough').⁶⁰⁶⁰ Coronavirus Act 2020, sections 71 and 76 (https://www.legislation.gov.uk/ukpga/2020/7/contents); INQ000273634_0026, 0029 paras 82, 91

¶It also incorporated, temporarily, additional powers in public health legislation in

¶Scotland and Northern Ireland, to ensure that both devolved administrations had the same regulation-making powers available to UK and Welsh ministers under the

¶Public Health (Control of Disease) Act 1984.⁶¹⁶¹ Coronavirus Act 2020, Schedules 18 and 19 (https://www.legislation.gov.uk/ukpga/2020/7/contents)

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¶13.29. In addition to these substantive measures, the Coronavirus Act 2020 included procedural mechanisms to regulate its duration, implementation and oversight:

a 'sunset clause' stipulating that most substantive provisions would automatically expire two years after the Bill received Royal Assent (the 'sunset date');⁶²⁶² Coronavirus Act 2020, section 89 (https://www.legislation.gov.uk/ukpga/2020/7/section/89). In accordance with the sunset clause, many of the Act's provisions expired on 25 March 2022.
the ability to shorten or extend the sunset date through regulations;⁶³⁶³ Coronavirus Act 2020, section 90 (https://www.legislation.gov.uk/ukpga/2020/7/section/90)
the ability to 'toggle' provisions on and off prior to the sunset date, via regulations;⁶⁴⁶⁴ Coronavirus Act 2020, section 88 (http://legislation.gov.uk/ukpga/2020/7/section/88) and
an obligation on the Secretary of State to report to the UK Parliament on the Act's status every two months between Royal Assent and the sunset date.⁶⁵⁶⁵ Coronavirus Act 2020, section 97 (https://www.legislation.gov.uk/ukpga/2020/7/section/97)

¶13.30. The Coronavirus Act 2020 did not, however, include a Covid-19-specific lockdown power. This omission is notable, particularly as the Bill was still being considered by Parliament at the time the first lockdown was announced.⁶⁶⁶⁶ See also COVID-19 and the Use and Scrutiny of Emergency Powers, Select Committee on the Constitution, 3rd Report of Session 2019-21, 10 June 2021, p20, para 55 (https://publications.parliament.uk/pa/ld5802/ldselect/ldconst/15/1505.htm; INQ000075368) When COBR discussed the need for further social distancing measures on 20 March 2020 – prompted by the rapid escalation in the number of Covid-19 cases – the Act had not yet been passed.⁶⁷⁶⁷ INQ000056212_0004-0006 paras 2-6 Instead, reliance on the Public Health (Control of Disease) Act 1984 was recommended.⁶⁸⁶⁸ INQ000106275_0003 para 9

¶13.31. Witnesses who supported using the Civil Contingencies Act 2004 during the pandemic believed that it would have provided a UK-wide response. Mr Johnson told the Inquiry that, in a future pandemic, there would be "considerable advantages to treating the UK (or at least the island of Britain) as a single epidemiological unit" and that:

" [T]he best approach is a UK-wide one: no local measures, no differences between the DAs [devolved administrations] and England but just one unified approach."⁶⁹⁶⁹ INQ000255836_0139, 0148 paras 496, 529

¶Simon Hart MP (later Lord Hart of Tenby), Secretary of State for Wales from

¶December 2019 to July 2022, agreed:

" And if there was a single thing – if there was a single sentence which I could conclude my evidence to you, it would be that. It is that area, it is that decision, which, if we were to do it again, I would do differently, more so than pretty well everything else."⁷⁰⁷⁰ Simon Hart 7 March 2024 128/25-129/5

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¶Some UK government ministers (including Jacob Rees-Mogg MP, Leader of the

¶House of Commons from July 2019 to February 2022) sought to revisit that decision leading up to the first UK-wide lockdown, believing that a centralised response to the pandemic would be more effective.⁷¹⁷¹ Vaughan Gething 11 March 2024 83/3-9

¶13.32. However, Mr Drakeford supported using public health powers, explaining that the devolved administrations were:

" just inevitably closer to the ground, more aware of administrative structures, alert to the different patterns of the disease".⁷²⁷² Mark Drakeford 13 March 2024 43/18-44/6

¶Ms Sturgeon agreed, stating that using the Civil Contingencies Act 2004:

" would have denied us the ability to respond flexibly to a virus that did not spread uniformly at all times; it would have been unable to cater for the different NHS/ public health structures across the four nations; and it would have diminished the democratic accountability of the four governments to the different populations we serve".⁷³⁷³ INQ000339033_0033 para 86

¶13.33. There are arguments both for and against the use of the Civil Contingencies Act 2004. While the Inquiry does not reach a concluded view on whether its use would have been preferable, the choice of the Coronavirus Act 2020 had significant implications for scrutiny and legislative timing. The possibility of using the Civil Contingencies Act 2004, even for a limited period, is considered further below.

The approach taken to legislation

¶13.34. The Inquiry understands the concerns expressed above. There would have been advantages and disadvantages to whichever approach the UK had adopted. The first possible disadvantage of the use of public health powers is the lack of scrutiny.

¶13.35. As a general rule, in a well-functioning parliamentary democracy, major policy decisions should be implemented through primary legislation, ensuring thorough parliamentary scrutiny. However, many significant interventions during the pandemic, such as lockdowns, quarantines and social distancing, were enacted through secondary legislation – specifically, regulations made under public health laws. This reduced both government accountability for key policy decisions and parliamentary oversight.

¶13.36. If these regulations had been introduced under the Civil Contingencies Act 2004, they would have been limited to a duration of 30 days, with new regulations requiring parliamentary approval.⁷⁴⁷⁴ Civil Contingencies Act 2004, sections 26 and 27 (https://www.legislation.gov.uk/ukpga/2004/36/contents) Public health regulations, however, are not subject to the same level of scrutiny – they are not time-limited and may remain in force for whatever period is specified in the regulations. As set out above, the UK

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¶Parliament also does not have the power to amend emergency regulations made under public health laws, as it would under the Civil Contingencies Act 2004.

¶13.37. This approach did ensure a rapid legislative response to meet the challenges posed by Covid-19. Dr Pablo Grez Hidalgo (Lecturer in Public Law at the University of Strathclyde), who has written extensively on executive accountability during the pandemic, observed:

" A pandemic requires an effective, fast and flexible response that keeps pace with the ever evolving nature of the virus."⁷⁵⁷⁵ INQ000369759_0003 para 6

¶However, there remains a fundamental tension: emergency powers must balance the need for rapid action with robust parliamentary scrutiny to ensure that responses remain evidence-based, consultative and protective of human rights.

¶13.38. The use of regulations (ie secondary legislation) became the norm. In England, between the start of the pandemic and 3 March 2022, the UK government laid 582 statutory instruments related to Covid-19 before the UK Parliament. Of these, 118 were subject to the made affirmative procedure.⁷⁶⁷⁶ See Coronavirus Statutory Instruments Dashboard, 2020-2022, Hansard Society, 9 April 2020 (https://www.hansardsociety.org.uk/publications/data/coronavirus-statutory-instruments-dashboard; INQ000605480) However, in several cases, it is unclear why this urgency of procedure was necessary, given the significant lead-in time before the measures were introduced. For instance, regulations mandating face coverings on public transport arguably could have followed the standard legislative process, as there was a clear policy shift well in advance of their introduction. The UK government first advised the public to wear face coverings on 11 May 2020, yet mandates for face coverings in various public settings were only introduced weeks or months later – on 15 June, 24 July, and 8 and 22 August 2020.⁷⁷⁷⁷ Our Plan to Rebuild: The UK Government's COVID-19 Recovery Strategy, HM Government, May 2020, p27 (https://www.gov.uk/ government/publications/our-plan-to-rebuild-the-uk-governments-covid-19-recovery-strategy; INQ000198892); The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 (https://www.legislation.gov.uk/ uksi/2020/592/contents): made on 14 June 2020, laid before Parliament the next day; The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (https://www.legislation.gov.uk/uksi/2020/791/contents): made at 09:00 on 23 July 2020, laid before Parliament four hours later; The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020 (https://www.legislation.gov.uk/uksi/2020/839/contents): made on 6 August 2020 and laid before Parliament the next day; The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) Regulations 2020 (https://www.legislation.gov.uk/uksi/2020/882/contents): made on 20 August 2020, laid before Parliament the next dayShow full note

¶13.39. Similarly, The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, which introduced legal requirements for self-isolation, were made under the urgent procedure on 27 September 2020, even though the need for such measures had been widely discussed for months.⁷⁸⁷⁸ The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (https://www.legislation.gov.uk/uksi/2020/1045/contents) Other significant policy changes, such as the introduction of travel quarantine measures, were also implemented via the made affirmative procedure, despite prolonged public debate and advance government planning.

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¶13.40. The Inquiry acknowledges the extraordinary demands occasioned by the pandemic. Nevertheless, the repeated use of the urgent procedure for regulations with clear lead-in periods suggests that the urgency criteria were not consistently applied and greater parliamentary scrutiny could and should have been allowed. This is discussed further below.

¶13.41. The Scottish Government rarely used the made affirmative procedure before the Covid-19 pandemic, with only one or two statutory instruments made under it annually.⁷⁹⁷⁹ INQ000365983_0009, 0010 paras 15, 23 However, from March 2020 to February 2022, over 120 statutory instruments were enacted in Scotland using the made affirmative procedure. The vast majority of these related to powers under the Coronavirus Act 2020.⁸⁰⁸⁰ INQ000365983_0009 para 16 Research by Dr Grez into a sample of 64 instruments found that the made affirmative procedure was the default for public health regulations in Scotland during the pandemic.⁸¹⁸¹ INQ000369759_0008 paras 24-25 The Scottish Parliament's Covid-19 Committee identified five cases where the use of the made affirmative procedure was not justified, including a controversial Covid-19 vaccine certification scheme.⁸²⁸² The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 2) Regulations 2021 (https://www.legislation.gov.uk/ssi/2021/349/contents/made) Despite earlier debates and opposition in August 2021, the regulations were passed in September 2021 without prior parliamentary scrutiny.⁸³⁸³ Pablo Grez Hidalgo 24 January 2024 153/05-25

¶13.42. In the autumn of 2020, the Scottish Government introduced measures to improve parliamentary scrutiny of pandemic decisions. However, the retrospective nature of the made affirmative procedure often limited scrutiny, since regulations were voted on after they had taken effect.⁸⁴⁸⁴ INQ000369759_0017-0018 paras 56-57 Frequent changes also meant that some regulations were replaced before votes had occurred and, in rare cases, regulations remained in force indefinitely without further approval.⁸⁵⁸⁵ For example, The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 13) Regulations 2020 (https://www.legislation.gov.uk/ssi/2020/261/contents) were made on 27 August 2020 and entered into force on 28 August 2020. On 9 October 2020, the Scottish Government enacted The Health Protection (Coronavirus) (Restrictions and Requirements) (Additional Temporary Measures) (Scotland) Regulations 2020 (https://www.legislation.gov.uk/ssi/2020/318/contents), which took effect immediately and included a sunset clause set to expire on 26 October 2020. However, these measures were extended by The Health Protection (Coronavirus) (Restrictions and Requirements) (Additional Temporary Measures) (Scotland) Amendment (No. 2) Regulations 2020 (https://www.legislation.gov.uk/ssi/2020/329/contents/made), moving the expiry date to 2 November 2020, and these were never put to a vote, as the regulations were replaced on 30 October 2020 with a new 'five-tier' system for public health restrictions.Show full note

¶13.43. The Welsh Government enacted 155 pieces of Covid-19-related secondary legislation in 2020, 128 in 2021 and 19 in 2022.⁸⁶⁸⁶ INQ000087075; INQ000087076; INQ000087077 Up to May 2021, the Welsh Parliament's Legislation, Justice and Constitution Committee reported on 144 Covid-19-related statutory instruments; 74 followed the made negative procedure and 61 used the made affirmative procedure.⁸⁷⁸⁷ INQ000352834_0015 para 61 Elin Jones MS, Presiding Officer (Llywydd) of the

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¶Welsh Parliament from May 2016, noted that, while the need for quick government action was understood, the frequent use of the made affirmative procedure led to frustrations.⁸⁸⁸⁸ INQ000352834_0015 para 64 Members of the Welsh Parliament were particularly concerned about the timing of debates on regulations that had already come into effect – often scheduled weeks after the laws were enacted. In some cases, regulations were replaced before Members had the chance to debate them, causing significant dissatisfaction.⁸⁹⁸⁹ INQ000352834_0015 para 65

¶13.44. Over 100 statutory rules were enacted by Northern Ireland government departments in response to the pandemic.⁹⁰⁹⁰ INQ000259849_0018 para 107 Of those, 83 were made without prior approval by the Northern Ireland Assembly – on the basis of urgency.⁹¹⁹¹ INQ000259849_0018 para 105 However, the Assembly needed to approve the statutory rules within 28 days, or they would automatically expire.⁹²⁹² INQ000259849_0018 para 106 While an ad hoc committee on the Covid-19 response was established to provide an additional forum for the Northern Ireland Assembly to receive statements from ministers and scrutinise them, the Executive Committee did not engage in pre-legislative scrutiny.⁹³⁹³ INQ000259849_0016 para 91

¶13.45. Alex Maskey, Speaker of the Northern Ireland Assembly from January 2020 to February 2024, highlighted that power-sharing arrangements in Northern Ireland require the Northern Ireland Executive to reach agreement on topics such as the restrictions that should be imposed in response to a pandemic. He suggested that requiring the Assembly to approve restrictions after they have been agreed by the Executive but before they come into force might lead to delay at times when it is important that decisions are made quickly.⁹⁴⁹⁴ INQ000259849_0021 paras 125-127

¶13.46. Peter Weir, Lord Weir of Ballyholme (Minister for Education in Northern Ireland from May 2016 to March 2017 and from January 2020 to June 2021), and other ministers noted that all five major political parties in Northern Ireland were represented on the Northern Ireland Executive Committee, so those parties had the opportunity to participate in debates on regulations before they were brought to the Northern Ireland Assembly.⁹⁵⁹⁵ INQ000408058_0025-0026 para 63; INQ000436132_0034-0035 para 158; see also INQ000436642_0060-0061 para 293 These parties represented 80 of the 90 Assembly Members during the pandemic – suggesting that, despite the potential for limited scrutiny in the Assembly, there was debate between those representing the majority of the population of Northern Ireland.⁹⁶⁹⁶ INQ000415449_0013-0014 para 52

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The need for enhanced parliamentary scrutiny

¶13.47. Sam Grant, Advocacy Director at the National Council for Civil Liberties (Liberty), told the Inquiry that, ahead of the third review of the Coronavirus Act 2020 in October 2021, Liberty circulated a briefing to all parliamentarians.⁹⁷⁹⁷ INQ000233734_0018 para 53; INQ000130696 The briefing noted that, as at October 2021, the UK government had been required to write to the Speaker of the House of Commons at least 25 times to explain why the legislation had come into force before it was laid before Parliament. Mr Grant remarked on:

" the startling erosion of normal democratic processes, which minimised Parliament's ability to scrutinise and hold the Government to account over its handling of the pandemic".⁹⁸⁹⁸ INQ000233734_0018-0019 para 55

¶13.48. Jun Pang, Policy and Campaigns Officer at Liberty, emphasised the importance of maintaining parliamentary scrutiny during emergency decision-making:

" I think it's really vital that … rapid decision-making in an emergency context does not obscure the need for effective parliamentary scrutiny, which is integral to our democracy and also ensures that decision-making is transparent and accountable and responsive to the needs of people who it's going to affect."⁹⁹⁹⁹ Jun Pang 9 November 2023 193/12-18

¶13.49. This was reflected, for example, in Wales and Scotland. As the pandemic progressed, consensus among Members of the Welsh Parliament and Scottish Parliament, regarding both the underlying policy and the process for implementing secondary legislation, began to erode. Opposition Members became increasingly unwilling to support the Welsh Government's policies and legislative approach.¹⁰⁰¹⁰⁰ INQ000352834_0017 para 71 Similarly, in Scotland, there was significant opposition to the introduction of the Covid-19 vaccine certification scheme, both in terms of the policy and the Scottish Government's decision to use the made affirmative procedure.¹⁰¹¹⁰¹ Motion S6M-01123, COVID Vaccine Certification Scheme, Scottish Parliament, submitted on 7 September 2021 (https://www.parliament.scot/chamber-and-committees/votes-and-motions/S6M-01123; INQ000548034); 'MSPs back Scottish vaccine passports', BBC News, 9 September 2021 (https://www.bbc.co.uk/news/live/uk-scotland-58463918; INQ000548028); The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 2) Regulations 2021 (https://www.legislation.gov.uk/en/ ssi/2021/349/contents/made)Show full note

¶13.50. Parliamentary scrutiny remains a crucial constitutional safeguard against the arbitrary exercise of executive power. It ensures that significant decisions affecting public life are subject to democratic oversight and prevents the concentration of power in the hands of the executive. It promotes accountability and transparency. Ministers should be wary, therefore, of making or using regulations under a procedure that bypasses effective parliamentary scrutiny for any length of time.

¶13.51. During the Covid-19 pandemic, there were instances where urgent action by all four governments of the UK justified the use of the made affirmative procedure. However, this expanded and extended use should not set a lasting precedent. While circumstances may necessitate its use, reliance on this procedure should strictly be limited, with governments required to justify its necessity in each instance. In most cases, the draft affirmative procedure should be the default for enacting substantial powers in primary legislation – as a way of ensuring proper parliamentary scrutiny.

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¶Any departure from this approach should be an exception rather than the norm, with clear criteria and safeguards in place to prevent the routine bypassing of legislative oversight.

Improvements to the legislative framework

¶13.52. To strengthen the UK's legal framework for future pandemics, it is essential to focus on improving transparency, scrutiny and collaboration. This includes ensuring that legal responses are clear, well defined and subject to appropriate parliamentary oversight. By embedding transparency into the decision-making process, lawmakers and the public can have a clearer understanding of the measures being enacted, which will help ensure trust and compliance. The Inquiry considers that the following changes would improve parliamentary scrutiny of legislative responses to a pandemic and enhance trust and compliance.

Sunset clauses

¶13.53. Regulations made under the made affirmative procedure should include a sunset clause specifying a clear expiration date. As noted by the House of Lords Select Committee on the Constitution:

" Sunset clauses enable Parliament to reassess the regulations made at a later point in time, once it is clearer how they are being used in practice and how suitable they are to the circumstances at hand."¹⁰²¹⁰² See also COVID-19 and the Use and Scrutiny of Emergency Powers, Select Committee on the Constitution, 3rd Report of Session 2019-21, 10 June 2021, p18, para 67 (https://publications.parliament.uk/pa/ld5802/ldselect/ldconst/15/1502.htm; INQ000075368)

¶13.54. The Inquiry agrees with the Independent Commission on UK Public Health Emergency Powers that a "two-month sunset period" offers a balanced approach, ensuring that regulations made or amended using the made affirmative procedure have a defined expiration date and are reviewed regularly, without overwhelming the legislature with frequent renewals.¹⁰³¹⁰³ Report of the Independent Commission on UK Public Health Powers, May 2024, p63, para 143 (https://binghamcentre.biicl.org/documents/2185_icukphep_final_report.pdf; INQ000512528)

Ministerial duty to report

¶13.55. There should be a ministerial duty to report to their respective parliament on the exercise of emergency powers every two months. Such reports proved valuable during the pandemic – for example, in helping the Scottish Parliament to hold the Scottish Government accountable and providing a regular, structured source of information.¹⁰⁴¹⁰⁴ INQ000369759_0023 para 81 The Inquiry agrees with Dr Grez that such reporting could usefully include:

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a description of the measures and their intended objectives;
details on whether and how the powers have been exercised;
an explanation of the continuing necessity for the powers;
evidence supporting the government's view on the necessity of measures;
information on 'stakeholder' engagement regarding the use and continuation of powers;
statements on the human rights impacts of the measures and steps to ensure proportionality; and
statements on equality impacts and efforts to prevent discrimination and mitigate any disproportionate impacts.¹⁰⁵¹⁰⁵ INQ000369759_0023-0024 para 82

¶13.56. Each of the four governments should commit to holding a debate and vote on regulations before they come into force, whenever possible. Where this is not possible, the governments should set out in the explanatory memorandum accompanying an instrument (or rule in Northern Ireland) why they consider it necessary for the regulations to come into force before a parliamentary debate, and commit to holding a debate and vote on the regulations within 21 days of the regulations coming into force.¹⁰⁶¹⁰⁶ COVID-19 and the Use and Scrutiny of Emergency Powers, Select Committee on the Constitution, 3rd Report of Session 2019-21, 10 June 2021, p21, para 83 (https://publications.parliament.uk/pa/ld5802/ldselect/ldconst/15/1502.htm; INQ000075368)

Recommendation 15: Scrutiny of emergency powers

¶The UK government and devolved administrations should ensure that the draft affirmative procedure is the standard process for enacting substantial and wide-ranging powers in a civil emergency, such as a pandemic, under primary public health legislation. Any departure from this procedure should be the exception, with clear criteria and safeguards in place to prevent the bypassing of parliamentary scrutiny. These safeguards should include:

'sunset clauses' for regulations made using the made affirmative procedure, specifying a clear expiration date, typically within two months; and
a duty on ministers to report to their respective legislatures every two months on the exercise of emergency powers.

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Use of the Civil Contingencies Act 2004

¶13.57. A Cabinet Office review in March 2022 concluded that the Civil Contingencies Act 2004 and the threshold tests within it remained "fit for purpose as an option of last resort".¹⁰⁷¹⁰⁷ Civil Contingencies Act Post-Implementation Review 2022, Cabinet Office, 29 March 2022, p21, para 88 (https://assets.publishing.service.gov.uk/media/6283a1a6d3bf7f1f3ef4838d/cca-pir-2022.pdf; INQ000055883_0021)

¶13.58. Opinions may reasonably differ on whether using public health powers was appropriate or whether the UK government should have used the Civil Contingencies Act 2004 to ensure a more centralised and consistent approach across the UK. It chose to use public health powers.

¶13.59. While a devolved, public health-led approach allowed tailored responses, it also resulted in inconsistencies across the UK, leading to public confusion and frustration. Mr Johnson reflected:

" Looking back, we should have thought much harder about the legal basis for the measures proposed … By allowing for at least the appearance of a divergence in approach between the various parts of the UK, we were risking considerable public confusion and frustration – when clarity of message was crucial."¹⁰⁸¹⁰⁸ INQ000255836_0030 para 126

¶13.60. One reason for choosing to use public health powers appears to have been the belief on the part of the UK government that the threshold requirements for triggering the Civil Contingencies Act 2004 were not met.¹⁰⁹¹⁰⁹ INQ000056153 However, had the Act been invoked – at least in the early stages of the pandemic, as a temporary measure while alternative primary legislation was passed – this would have allowed for more detailed scrutiny of the Coronavirus Bill.¹¹⁰¹¹⁰ See also Parliamentary Scrutiny of the Government's Handling of Covid-19, Fourth Report of Session 2019-21, Public Administration and Constitutional Affairs Committee, House of Commons, HC 377, 10 September 2020, pp7-8, para 5 (https://committees.parliament.uk/publications/2459/documents/24384/default; INQ000075349) It would also have required the remaking of regulations every 30 days and therefore the UK Parliament's involvement in the legislative process far more.

¶13.61. The Inquiry understands that this may not be the preferred option for a long-term response in the light of the devolution settlement. Although UK government ministers are required to consult with the devolved administrations before implementing emergency regulations under the Civil Contingencies Act 2004, the devolved administrations and legislatures lack the ability to create and scrutinise such regulations. Given that the devolution of health policy and provision is a key aspect of the UK's constitutional framework, use of the Act would deprive the devolved administrations of the authority to make their own public health decisions.

¶13.62. The Inquiry recommends that, given continuing uncertainty about the threshold for triggering the Civil Contingencies Act 2004, the UK government should undertake a further review to assess the Act's potential use as a bridging measure for future emergencies, including pandemics, until further legislation is enacted. Such a review would ensure that emergency responses begin with a consistent, legally sound framework, preventing unnecessary legal uncertainty and delays. The review should clarify and produce guidance on when and how the Civil Contingencies Act 2004 can be invoked as an initial response mechanism for civil emergencies, before a more tailored legislative solution – such as a dedicated pandemic bill – is passed.

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¶This approach would maintain the benefits of parliamentary scrutiny, while allowing for rapid UK-wide coordination.

Recommendation 16: Review the applicability of the Civil Contingencies Act 2004 for future civil emergencies

¶The UK government should undertake a review of the Civil Contingencies Act 2004 to assess its potential role in managing future civil emergencies, including pandemics, and whether it could be employed as an interim emergency framework until more specific legislation with appropriate parliamentary safeguards is passed. The review should:

examine the conditions under which the Civil Contingencies Act 2004 may be invoked in a public health emergency;
consider any adjustments to the Act's safeguards, such as the triple lock test or time limits, that would make it more adaptable to pandemics; and
produce clear guidance on the Act's application for use in civil emergencies, including pandemics, to support its use as an emergency measure in advance of specific legislation – such as a dedicated pandemic bill – being passed.