My Lords, I shall concentrate on what I see as the danger that practices and habits developed during the crisis may turn into long-term changes to our democracy. In no way do I underestimate the seriousness of the pandemic threat or the need for decisive government action to lead our response to it, but there have been serious mistakes and there are serious dangers.
First, it has become a habit of government to bypass even the very limited processes for parliamentary scrutiny of secondary legislation with a statement asserting that
“by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.”
That is true of one of the statutory instruments that we are debating today. The Government did that even
when the changes involved had been announced days or even weeks in advance of the instrument being laid. Emergency and urgency are not the same thing.
The Government are assisted in that habit by the decision not to use the Coronavirus Act for the main provisions that restrict individual liberties but to rely instead on the Public Health (Control of Disease) Act 1984 as amended in 2008. One of the results of that was that hundreds of people were wrongly given fixed penalties, charged or even convicted because the police did not understand the new laws, and in some cases the Crown Prosecution Service appeared not to either. If Parliament had been told during the passage of the Coronavirus Act that different, earlier legislation was going to be used—I do not remember that being mentioned at all during the discussions on the Bill—some of those problems would have been anticipated and avoided. That is one of the benefits of parliamentary scrutiny.
Secondly, the police were left confused and misdirected on both the extent of the law and how to enforce it. That is compounded by the multiple, overlapping and sometimes erroneous legislation they are expected to digest and enforce. The problem is made even worse by a repeated, and probably deliberate, blurring of the line between law and guidance. The term “rules”, which is widely used by Ministers, is one recent example of that, where it was unclear whether he was talking about things which were law or things he was recommending as guidance. The Prime Minister at one point said, “I am instructing you to stay at home”. Prime Ministers do not have a power of instruction.
I have no problem with Governments in a situation like this issuing very strong advice, calling on people to behave responsibly and setting out the dangers to all of us of not doing so. But we will have a problem if the police treat ministerial advice and guidance as if it has the force of law. That is government by decree and government by press conference, and we saw where it can lead at the Clapham vigil.
The problem is made even more serious by legislating that it is an offence for an English citizen to be outwith his or her home in their own country unless covered by specific exemptions, which an officer of the state has to interpret if there is a challenge. That is very different from, for example, a requirement to wear a face mask, a ban on gatherings or a restriction on business premises where there is considered to be a high risk. It is a national curfew, a system of house arrest, which changes the relationship between the state and the citizen. That part of the legal framework expires at the end of this month, and I hope never to see it again.
Returning to the issue of the Clapham vigil and those disgraceful scenes which were witnessed across the world, it is clear that the Government should never have removed from the regulations the right to democratic protest and demonstration, subject to police guidance and existing law. It is far better to facilitate a regulated demonstration with social distancing and control of numbers, with action under existing law to deal with those who subvert peaceful protest by violence, as happened so disgracefully at Bristol.
A further, less well-known feature of the pandemic legislation is that it allowed the Scottish Government to close the border between England and Scotland,
effectively achieving a partial reversal of the Act of Union and breaking up the common travel area. There has not been much enforcement because the police do not have the resources to do that. It may be argued that there was an overriding public health need to impose such a restriction, but I find it curious that neither England, nor the United Kingdom Government and Parliament, had any say in the matter at all.
I return to my central question: what are we doing to rebuild the structure and principles of good governance? We need updated legislation to deal with emergencies, which must be given thorough parliamentary scrutiny and have scrutiny built into its operation. Parliament in both Houses must assert its right to scrutinise secondary legislation without being habitually bypassed by the urgency provision. We must end the confusing language which has the effect of extending law enforcement into advice enforcement and rule by decree. Citizens are entitled to know, and to be correctly advised on, what is legally required of them and what, in the Government’s view, it is socially responsible for them to do. They are not the same thing.
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