The Government should give MPs more votes on the Coronavirus Act

27 Mar

When the Commons voted this week on extending the provisions of the Coronavirus Act (‘the Act’) many MPs focused on the apparent contradiction of the Government seeking to extend most of the regulations by a further six months even whilst ministers continued to insist that the nation is on-track to unlock in June.

This doesn’t mean that they have to run that long. The Act empowers ministers the date at which its provisions lapse by regulations. But it means that should they decide for whatever reason to try and extend lockdown until the autumn, Parliament would have no easy route to stop them.

One suspects that, once the crisis is passed, the legislative side of the pandemic will provide future politicians with more than a few pointers about what not to do. Some in Cabinet are reportedly arguing that it was naïve to allow the devolved governments to set their own public health regimes, forcing Westminster to try (and fail) to negotiate a ‘four-nation’ approach rather than simply delivering a one-nation one.

The long intervals on renewal built into the Coronavirus Act may be another. As it stands, ministers need only bring a motion before the House to get MPs’ authorisation to maintain its provisions every six months. If ever that seemed like a sensible timetable – and it’s important not to forget the environment in which the legislation was drafted – it seems excessive now.

For a Government with a majority of 80, the text of the Act is no barrier to remedying this situation. It ought to be perfectly straightforward to amend it so as to provide for parliamentary authorisation on a more regular basis. This would also be a gesture of goodwill towards the slowly-growing band of Conservative MPs opposed to the restrictions.

Should ministers fail to act, they may be able to ride the mandate of this week’s vote through the summer – but run into much more serious political difficulty renewing any provisions that might be necessary to combat a winter wave when the regulations come up for approval again in six months time.

Steve Baker and Dominic Grieve: Saturday’s vigil, its mishandling – and why we should be wary of this plan for more police powers

16 Mar

Steve Baker was a Minister in the former Department for Exiting the European Union, and is MP for Wycombe.  Dominic Grieve is a former Attorney General and MP for Beaconsfield.

Sarah Everard’s killing and the subsequent charging of a police officer with her murder are horrors which will have struck us all. Men need to relearn the basic courtesies that enable women to feel safe in public – including challenging those who continue to ignore them – and heed the message that so many women have tried to convey over the last few days.

In its aftermath, Saturday’s events on Clapham Common were a disaster for the image of policing by consent and a vivid illustration of the consequences of the enactment of bad law. Policymakers and lawmakers must learn the right lessons from this as we consider the Police, Crime, Sentencing and Courts Bill.

The police have been put in an invidious position by poorly enacted Coronavirus law. The police may consider that protests are banned, but as a briefing by Big Brother Watch explains that “whether or not protests are legally prohibited remains unclear.”

While the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 contain a specific exemption on gathering for protests in Tiers 1-3, in Tier Four this exemption has been removed.

However, there is a credible argument that silent protest is still allowed as a common law right which has not been specifically banned. That has created an ambiguity which inevitably undermines Dame Cressida Dick’s claim in relation to the Clapham Common events that “unlawful gatherings are unlawful gatherings”.

Given the testimony to Parliament that there is very little evidence of outdoor transmission and no outbreaks linked to crowded beaches, it is hard to see how it was a good policing decision at this stage in the pandemic to break up a vigil for Sarah Everard by force – a vigil attended privately earlier by the Duchess of Cambridge for very good reasons.

This serious fiasco has also become the context for the Police, Crime, Sentencing and Courts Bill, but it is not necessarily the right context through which to consider all the public order powers in the Bill. The willingness of contemporary protestors to use non-violent mass law breaking to pursue political ends by bringing our cities to a halt and by placing massive pressure on policing resources cannot just be ignored.

In January, Brandon Lewis clarified in the Commons that the Government did not consider Extinction Rebellion an extremist group. But others have suggested that some within it may aspire to undermine liberal democracy by mass protest of this kind, although it must be rather doubtful that this is the agenda of most of its supporters.

If the powers available to deal with such improbable radicalism in practice are really insufficient at present, then this may justify changing the law. But in doing so MPs must uphold the fundamental right to protest along with the rights and freedoms of those whose lives may be seriously disrupted by such demonstrations.

The problem is that there is much in Part Three of the Bill to raise concerns that it may create uncertainty by giving far too much discretion to the police in determining this balance, and far too much power to the executive to change the law by decree if it chooses – a practice of which our experience over Coronavirus ought to make us very wary.

In a free and democratic society, the right to protest in public is fundamental, and the presumption in favour of maintaining that right, even at the risk of its being occasionally abused, is paramount. The criticisms of this part of the Bill from many quarters should not be ignored, even as we ask critics to face up to new policing challenges.

The Bill, being so wide in its scope, also deals with many other issues unrelated to public order and demonstrations. Those voting against it at Second Reading, as the Official Opposition apparently intends to do, must explain and justify their doing so when there will be much in it that their constituents will want. South Buckinghamshire residents will want to deter unlawful encampments, for example.

Conversely, those MPs voting for the principle of the Bill today, because they wish to see parts of it enacted, must make clear their intent to improve it at later stages and address the fundamental matters that go the heart of our civil liberties. Meanwhile, at this stage in the pandemic and the vaccination programme, the Government should proceed immediately to repeal all Covid-related restrictions on the right to protest, and remove the possibility of a recurrence of Saturday’s events.

Sarah Ingham: Corbyn and his gang could scarcely have handled coronavirus worse than the Government

20 Feb

Dr Sarah Ingham is a member of Kensington, Chelsea and Fulham Conservative Association.

Might it have been better if Jeremy Corbyn and his band of merry Trots won the December 2019 General Election?

Had Corbyn and the comrades somehow got their hands on the levers of power, it is unlikely that the press, Parliament and public would let them get away with the assault on our liberties and livelihoods in the doomed attempt to combat Covid-19 that we have experienced since 23rd March 2020.

Lockdown was supposed to last for three weeks. Eleven months on, not only are we under house arrest and but we are kettled in Britain, forbidden to leave the country. We are warned that we face a ten-year prison sentence if we fib about our travel history. Meanwhile, millions are on furlough and thousands of businesses have vanished.

Declaring it wanted to put its arms around us, this Government has brought the country to its knees and the state has its boot on our collective windpipe.

Britain’s economy has been trashed and children’s education destroyed, the long-term health of millions sacrificed and ancient liberties cast aside. This Government has jettisoned every Conservative principle. We have statist Corbynism by stealth, aided and abetted by supine MPs who were only too happy to get themselves elected on the Tory ticket.

The party for which millions voted in December 2019 stood for Brexit, but also for Conservatism. This means a love of freedom, personal responsibility and a level of state intervention which protects society’s vulnerable. Voters believed that the Party was on the side of enterprise and business, that it was instinctively wary of meddling officialdom.

Statist authoritarianism has now become almost as routine as serial incompetence, cronyism and the non-stop barrage of Covid-related propaganda paid for by us. Orwell’s Two Minute Hate only lasted two minutes.

A disproportionate amount has been exacted to ‘save lives’, but it has failed. If the Government’s measures were so successful, how it is Britain’s death rate is among the highest per capita in the world? The threat to bang us up for going to the Algarve would not be justified even if, instead of 115,000, 1,500 had perished from the virus – as in South Korea.

If John McDonnell were in Number 11 would we be so relaxed about the Government’s discovery of a Magic Money Forest, or about the billions disappearing in Bounce Back loans? No wonder many are braced for confiscatory taxes in next month’s budget.

Children are the collateral damage in all this, but it’s not Piers and Poppy at their expensive prep schools who are missing out. Should Angela Rayner be at the helm of the Education Department, the teaching unions might not be so stroppy – and so happy to bake in social disadvantage by denying schooling to the most under-privileged.

Had Prime Minister Corbyn’s team exercised power in the arbitrary manner of this government, it is hoped that Conservatives MPs would have channelled their all-too-latent Oliver Cromwell or John Pym. But instead of holding the overmighty Executive to account, with a few honourable exceptions, our MPs have had their trotters up for 11 months. With only 50 MPs allowed in the Commons’ Chamber,  Parliament is not so much hybrid as comatose. Bring back Bercow.

For almost a year, democracy has been iced. The warning bells sounded when the under-scrutinised Coronavirus Bill was fast-tracked in one day through a pandemic-spooked Parliament. Questions about why the 2004 Civil Contingencies Act was not being deployed were brushed aside. Specifically drawn up to deal with emergencies, regular Parliamentary oversight is integral to the CCA – unlike the Coronavirus Act.

Asleep-at-the-switch MPs are allowing rule by ministerial caprice. Currently, ministerial wishes are commands, to be interpreted by Britain’s police forces. Exercise within five miles from home, for an hour a day? In relation to the lockdown, the cause of liberty – the lodestar of Conservatism – is not helped by the deliberate muddying of the difference between the law and the guidance.

Against expectations, we have a vaccine and the roll-out is going spectacularly well. Millions have also had the virus, but we are hearing little about the possible immunity it confers. In addition, because of natural immunity it is far from impossible that some might never succumb to Covid-19 at all… All this is surely a cause for celebration. Plans should be made to unlock as much as possible, as soon as possible.

When the penny finally drops for the slow learners around the Cabinet table and on the Government benches in the Commons that Covid-19 is not the bubonic plague, perhaps they might recover a sense of proportion and political nous. ‘Until the public inquiry’ is this year’s ‘kicking the can down the road’.

Because they are going unchallenged, too many of Labour’s narratives are taking hold, among them locking down too late. But from about 8th March, the majority of the public was making its own risk assessment, not waiting for state directives about ‘stay home’. Unlike too many elected Conservatives, Jo/Joe Public was being Conservative. This same public differentiates between the death of teenagers and those aged 80+. They wonder why the Government has been in thrall to do-as-I-say, not-as-I-do scientists.

If Corbyn and his followers are not to have the last laugh, perhaps Conservative MPs could reflect on a title of a book to which some Tory ministers contributed – Britannia Unchained. If irony hasn’t died, how about some action this day?

Why the Government is under pressure to confirm the date of the local elections

9 Jan

Last month, we looked at the measures the Government is bringing forward to try and ensure that this year’s local elections, having been postponed for a year due to the pandemic, proceed as planned in May.

These included increased campaigning expenses and proposals for ’emergency proxy voting’ for those forced to self-isolate.

Yet with the nation plunged back into lockdown, local government figures are again concerned about the prospect of delays and have demanded clarity from Ministers about whether or not the elections will go ahead. So what’s going on?

For its part, the Government continues to insist that it will be possible, using the safeguards it is putting in place, to conduct “covid-secure” elections on schedule. According to the Cabinet Office:

“Primary Legislation provides that the elections will go ahead in May 2021. We continue to work closely with the electoral community and public health bodies to resolve challenges and ensure everyone will be able to cast their vote safely and securely – and in a way of their choosing. Measures are planned to support absent voting at short notice. Guidance will be published in good time ahead of the polls and this matter will be kept under review.”  

Inside Whitehall, the difficulty is seen to lie less with polling day itself than with the broader campaigning period. If the Government isn’t able to start easing lockdown restrictions as swiftly as planned, it may remain illegal for activists to do in-person campaigning. And if different parts of the country are descending through the tiers at different speeds, that risks a regionally-unequal democratic process.

Moreover, there are legislative challenges to further postponement. The new election date is enshrined in legislation, and the power to delay them under the Coronavirus Act has expired. So any delay would require fresh primary legislation, and that – on top of the need to keep election administrators properly informed – places its own time limits on the window of decision.

(And that is before getting to the devolved administrations. Each of these has the power to delay their own elections, but in Wales the timing of the Police & Crime Commissioner ones are reserved to Westminster. Postponing these would also require fresh primary legislation, but that process can’t start until, at minimum, the Welsh Government has made its mind up about the Welsh Parliament vote.)

For all this bullishness, however, the Government is keeping the matter under review and delay has not been ruled out. There is also no sign that Westminster is exploring all of the options being explored by the Scottish Government, which include things like an all-postal election.

The consensus between Whitehall figures and Conservatives in local government seems to be that if the elections are put off, it cannot be for very long – perhaps just back into June, when the NHS is under that much less pressure and the vaccine rollout is more advanced.

Robert Sutton: The protection of civil liberties must be placed at the heart of a reformed Public Health Act

1 Jan

Dr Rob Sutton is an incoming junior doctor in Wales and a former Parliamentary staffer.

Since the passage of the Coronavirus Act 2020, we have seen an unprecedented restriction of civil liberties in this country. The powers assumed by the government have allowed ministerial decree to circumvent parliamentary scrutiny and to regulate the minutiae of our everyday lives to a degree unimaginable just one year ago.

Yet the basis of these powers drawn from the Act is dubious. Notable legal scholars, particularly Jonathan Sumption, the former Supreme Court Justice, have argued that the legislation is unsuitable for the executive powers which have been carried out in its name. Parliamentarians are similarly frustrated by the way the Act has been used to evade parliamentary scrutiny while some of the most consequential restrictions are rolled out on ministerial whim. Steve Baker, in his duties as Deputy Chairman of the Covid Recovery Group, has repeatedly called for reform in this area.

Certainly, any legislation which is being used for such a constitutional distortion must be entirely unambiguous in its scope. The Act draws its authority in part from the Public Health Act 1984 (PHA). The PHA provides powers to restrict the movement of individuals known to have a communicable disease and to control spaces which are known to be contributing to contagion. Yet the current Covid-19 restrictions are far broader in their application that just to those individuals who are known to be infected, and this is where the Act treads into murky waters.

While the PHA is clear in putting forward what restrictions might be applied to individuals and premises known to be contagious (and these restrictions are entirely sensible), it is far less clear what the scope of its powers are with regards to individuals who are not infected with a communicable disease – the vast majority of citizens. The legal precedent on such issues is that, where there is ambiguous or general wording, such vagueness must not be used to curtail constitutional freedoms. Else, we would be able to take justify drastic actions using whatever legislation is unclear in its scope. But the Government seems uninterested in such precedent.

The primary piece of legislation which gives government powers to curtail civil liberties is the Civil Contingencies Act 2004 (CCA). The CCA is a remarkable piece of legislation which allows a government to wield extraordinary powers in an emergency. As such, its use is strictly bound by ongoing Parliamentary scrutiny of those powers. It is clear that these powers are lent to the government by Parliament, and for a limited period at a time. They can also be withdrawn by Parliament as it sees fit. The fear that an emergency might be exploited to evade the House of Commons by a power-hungry executive was precisely what the drafters had in mind when including such safeguards.

The necessity for Parliamentary scrutiny intrinsic to the CCA is why MPs have argued that the executive should be using it as the basis for coronavirus restrictions instead of the PHA, or that the PHA itself should be reformed to make clear the limits of its powers. Yet Boris Johnson has made clear that he has no intention of using the CCA as the legal basis of lockdown powers, so we return to the PHA to define that scope.

The current PHA certainly was not developed with the current situation in mind. So, as it stands, we find ourselves trapped in a middle ground, in which the legislation being used as the basis for lockdown is unsuitable for that purpose and incapable of giving such provisions as to ensure ongoing Parliamentary scrutiny. This gives the rather uncomfortable impression that the Government intentionally chose a legal basis which it could use knowing that it would be subject to a lower standard of Parliamentary scrutiny than that which would be required under the CCA.

Yet to try to circumvent Parliament in the exercise of executive power is extremely myopic. Whether the Government currently realises it or not, it is within their best interests to ensure that further restrictions are brought before Parliament. Parliament is not some constitutional inconvenience. It is the basis for our liberal democracy, the means by which legislation is given its moral authority and an exceptionally useful political tool to measure public perceptions of government plans.

By directly reforming the PHA to explicitly limit its scope, and to allow legislation carried in its name to face full scrutiny by Parliament, the Government would certainly face a short-term inconvenience of restricting the executive powers it has used lavishly thus far. But there would be an overwhelming long-term gain in ensuring that those measures passed have the direct consent of MPs and the indirect consent of their constituents. This would without doubt make for better and more resilient legislation and ensure that any further restrictions are more surely footed in both law and public opinion.