Transcript: Episode 47

What's happening in Westminster?

Vivienne Parry  0:03  
Hello and welcome back to Coronavirus. The whole story. UCL's is award winning podcast all about the pandemic. My name is Vivienne Parry. I'm a writer broadcaster and UCL alumna and your host for all things Coronavirus related. Now, you know that locked down time thing where someone said it was Christmas last week, you could probably be persuaded that it was when our lovely team told me that this podcast had been going for a whole year. You could have knocked me down with a feather. But honestly, it really has. They have dates and times and everything. So we thought we'd better get a grip and be properly serious and look at how much has changed during the last year. And consider something that has been dramatically altered, but which we've not yet addressed the law. What powers have been brought in to help enforce lockdown and tackle the virus? Have they been given the correct amount of scrutiny? And how do they compare to other Coronavirus laws created by other countries. I'm joined today by standout tea. Professor Jeff King is Professor of Law in the Faculty of laws, Jeff researches UK in comparative Public Law and the relationship between public law democracy and social policy. He's currently examining the use and abuse of delegated powers in the context of COVID-19. I'm also joined by Professor Meg Russell, Professor of British and comparative politics and well known to everybody from her appearances in the media. Meg is the director of the Constitution unit research group conducting independent research into constitutional change. alongside her research, which has covered everything from the House of Lords to citizens assemblies, make works closely with policymakers, and has played a key role in the evolution of our parliamentary systems. And last but not least, I'm joined by the splendid Dr. Melanie Smallman an associate professor in the Department of Science and Technology studies, Melanie has been working with the UK pandemic ethics xcelerator to help provide evidence, guidance and critical analysis to inform policy and help improve decision making. For this project, Melanie has been focusing on the ethics of data collection and its use during the pandemic. So I've got you all here today to talk about what's changed from a legal perspective because of the pandemic. Meg, firstly, let's come to you and ask what powers does our government have now that they didn't have this time last year?

Meg Russell  2:36  
Well, what I've been watching is Parliament's and the extent to which the decision making process has really pretty fundamentally changed over the last year we actually issued a briefing this week marking just as you say with this podcast a year since Parliament came back after the Easter recess 2020 in a very different format to usual the introduction of virtual proceedings, etc. and the closing down of certain proceedings. The very beginning of the crisis. Just before Easter, the Coronavirus Act was rushed through Parliament spent just one day in the commons and gave very extensive emergency powers to the government. But since then, the thing that you mentioned as one of Jeff's key specialisms, the use of delegated powers has been really, really commonplace and very, very controversial and increasingly controversial among members of parliament themselves. So delegated powers are powers which are given to the government by acts of Parliament to allow them to pass more detailed legal changes without full parliamentary scrutiny. And we've seen in the past year over 400, what are called statutory instruments related to COVID past using these delegated powers, in a lot of cases, there's very little discussion at all of them in Parliament. And when they are discussed, it's very much a kind of curtailed scrutiny process compared to ordinary law. And one of the key things that we drew attention to in this briefing that was published jointly by the Constitution unit and for other expert organisations, the Hansard society, which is very specialist in Parliament, the bingum Centre on the rule of law and the Public Law Project. Obviously, all experts on the legal process, we drew attention to the fact that time and again, really major changes have been introduced using delegated legislation things like the wearing of face masks, the introduction of travel quarantines, the introduction of fixed penalty fines, which can be up to 10,000 pounds have been introduced at extremely short notice with the instruments which are often quite complicated published sometimes late on a Saturday night coming in at midnight with effect from Sunday morning and they're not even seen by parliamentarians before that publication and they're not debate in Parliament sometimes until weeks afterwards and members of parliament who were pretty tolerant at the beginning you know, passing the Coronavirus Act through in one day everybody understood that there was an absolute emergency. We needed quick action government needed more powers. That was pretty uncontroversial at the start. But you know, this has gone on and on over a year and conservative backbenchers in particular, have gotten more and more unhappy with the extent to which they're not being consulted on things. They're getting to see the law after it has been in effect for weeks. And very often, there's a lot of controversy about the Downing Street press conferences. We've just had the announcement that's the press conferences as envisaged with Allegra Stratton in that rather presidential style have been called off now. But we have seen these press conferences with the Prime Minister and sometimes alongside ministers or sometimes alongside the scientists making announcements which are not made to Parliament. So they're not subject to the usual kind of scrutiny by elected parliamentarians who can represent the views of their constituents. Instead, they're subjecting themselves to media questioning which is valid, but it's very different to being subject to the democratic process.

Vivienne Parry  6:07  
Jeff, do you want to add anything there from your point of view in terms of delegated powers?

Jeff King  6:13  
One thing that is surprising is that there's been a lot of attention about the Coronavirus Act, which was passed became lawn last year I believe, on the 27th of March, which was also the date on which the regulations creating the first lockdown came into force out of about 400 Coronavirus related statutory instruments or delegated legislation. Only 21 of them were made under powers in the Coronavirus Act. The vast majority were made under a pre existing legislation, the 1984 public health control of diseases act that although it sounds old was amended in 2008, to insert all the powers that have been used in the main to respond to the pandemic. So we had pre existing legislation. Many believe that it wasn't fit for purpose for a pandemic of this scale, involving the extent of intrusiveness that we've had of this scale. It was clear to Parliament when when the Coronavirus Act was passed that the 1984 Act would be used, because a Coronavirus act gave similar powers that were held for England and Wales under the 1984 Act to Scotland and Northern Ireland. So it was aware that that was going to be the main vehicle but I'm not sure that parliamentarians realise just how much it would be the system in the 1984 Act. And some notable weaknesses of that that previous regime is that there, there's no expiry date on how long those regulations should exist. So in many other countries around the world, there are emergencies declared and there are delegated legislation making powers which exists for a certain period of time, depending on the country that might be as little as one month under the 1984 Act. On the other hand, you know, the first lockdown regulations were set to expire in 12 months time, which was, I think, has no comparison elsewhere. So I generally agree with the criticisms that to make Russell has just outlined, but the thing to note is that this was a feature of a legal order that pre existed the Coronavirus Act was adopted in response to the pandemic last year.

Vivienne Parry  8:22  
And there were some strange things in the public health legislation. Previously, there were things about library books and being bought back and things like tents and Boy Scouts and all sorts of things that we wouldn't think of. We're terribly relevant in in modern day life, but I'm getting Melanie's that the city street probably thinks, well, it's an emergency, why should I care about this kind of legislation? But how in your view, have these new powers affected us as citizens? Yeah, so

Melanie Smallman  8:54  
what I think the point that Jeff makes about there being no expiry date is exactly one of the issues that we're most concerned about with the ethics accelerator. So we're kind of looking ahead at ethical issues that could be up and coming relating to decisions around COVID. And I think one of the key things that is coming up time and time again, particularly around data is this question of when does this end so it's understandable that within a pandemic, that ethical questions and ethical standards change when it comes to research ethics and testing drugs and vaccine trials? The World Health Organisation has very clear procedures for how how rights of citizens and how sort of the ethical context changes in an emergency situation, but we don't have that when it comes to data. And so that in particular, I think is something that we're trying to keep an eye on and keep concern about because it's overwhelming to say we're relaxed about having our movements tracked during a pandemic. But at the moment, there's no plan with things like contact tracing apps, we've never seen a plan for a how that tracking will stop and be what will be done with all of that data that's collected at the end. So that seems to be one of the key key concerns for us is less. How are people feeling about it right now? and more about is this heralding in a more authoritarian or a higher level of surveillance by accident in the future?

Vivienne Parry  10:29  
Mike, what's your view on that? I mean, I guess that I suppose most of us think that all these emergency powers will end when the pandemic, if not go has gone away, because I think we're going to have to certainly have to live with Coronavirus for quite a long while yet, but that it will go away once the immediate danger is over.

Meg Russell  10:54  
One of the things that concerns us that we expressed in this the briefing that we published this week is that this mode of policymaking becomes quite attractive for government and that there is a danger that you know, it's been such a long time. Now, as we've said initially at the start, we thought perhaps you know naively that we'd be in this situation for a few weeks, and if not that a few months. But here we are a year later still living under these restrictions. And I think there is a risk that politicians fall into the habit of making policy without proper scrutiny makes their lives easier if they don't have to undergo difficult questioning in Parliament and so on. And actually, Jeff is quite right to say that these powers in the 1984 Act had been on the statute book for a long time, it hadn't been necessary to reach for them in this kind of concentrated way before now, but within the current periods, there's another key bit of contact text which might seem unrelated to this, but it is related in a sense for a reason I'll say which is Brexit. Because obviously, you know, we were all preoccupied with Brexit before Coronavirus, hit and then you know Coronavirus took over the news. And we've ceased thinking very much about Brexit. But there is a commonality between the two which is that the Brexit process also gave the government very extensive delegated powers to make legal changes simply because we've been signed up to the EU system of laws for decades, and changing our laws to make independent decisions was going to be a huge legal exercise. And if all of those measures that had come before parliament in the usual way, it would have created a huge bottleneck. So ministers have now got very extensive powers in two areas, and most of their policymaking is being is going ahead under delegated powers. This is not healthy, it's been driven in both cases by necessity. But the longer it goes on, the more the risk that politicians just get in the habit of not undergoing proper scrutiny, which is in principle wrong, and it lacks transparency and accountability, which you know, is not a good thing. But it also you know, very pragmatically means that policymaking is likely to not be as sound because the scrutiny process isn't just there as window dressing to make things look democratic. The fact that ministers have to come to Parliament and answer difficult questions and defend their policy means that they think their policy through much more carefully knowing that they're going to have to defend it in public. And sometimes, of course, sometimes they fix problems before they reach parliament. And then sometimes Parliament points out problems and as a result policy gets better. So the risk is that if we fall into this pattern of executive policymaking with limited accountability to Parliament, we actually wind up with worse policy. And I think we also wind up with worse politicians, because the scrutiny process tests the mettle test the capacity of the politicians as well. So if you can hide from scrutiny, the risk is that you end up with less capable government.

Vivienne Parry  14:05  
Now, Jeff, these are some of the hallmarks of regimes and countries that we are really disapproving of. And you're our international experts. There are plenty of our countries that have bought in these emergency powers because they're necessary for these extraordinary times. But what kinds of powers have other governments granted themselves? And how does the UK compare? Well, I'm

Jeff King  14:33  
currently leading on an investigation of about 60 countries. It's a project called Lex Atlas COVID-19. We'll be launching an Oxford Compendium on legal responses on Monday. And we in the first phase of that study, we looked at about 20 countries. And there's remarkable similarity in the resort to executive powers. In all of the countries there's an urgency required. To respond to changes in the the epidemiological situation, that more or less necessitates the use of delegated powers. And that is true across all of the countries, there are different models that some have declared constitutional states of emergency or alarm. countries like Spain and Italy, others have declared a statutory form of public health emergency. That's the case in in France and Germany and New Zealand. And doing that declaring a state of emergency means you unlock certain lawmaking powers. But it also means that you need to revisit that declaration from time to time and has to be refreshed in a way that we haven't had in the UK. And other countries and the UK, in particular rely on existing public health legislation. Now, despite this legal variety, and constitutional variety, there has been a quite a similarity in terms of the actual substantive provisions that have been imposed in various places. I mean, in policy terms, they can differ. But what I'm saying is that these constitutional differences don't necessarily track whether the countries want to use a stay at home order or to not use a stay at home order. For instance, Taiwan and Hong Kong avoided using stay at home orders. So despite the legal variety, we're seeing some degree of policy convergence in different countries using different forms. But this, even if it doesn't have it, a determinative impact on the policies that are adopted, it can be meaningful for democratic accountability. And that can be meaningful, both because it's just required in a democracy that, that our elected representatives have a say in things but also for the very important ethical issues that that Melanie was mentioning, not long ago. So the UK, his approach, in terms of how it fares against other countries, has shown a reliance on powers that are not checked in a temporal fashion. They bring measures to Parliament, but those measures tend to be waved through and Parliament doesn't have to periodically review these powers. It's only been asked to periodically review the operation of the Coronavirus Act itself every six months, it's hard to votes on that. And the government comfortably won both votes. So that can be contrasted with other nations where the emergency itself has to be renewed or the measures are regularly expiring.

Unknown Speaker  17:27  
Make

Meg Russell  17:28  
Yeah, what I wanted to say to add on to what Jeff has said is that it's not just government. It's not just governments and their behaviour that are changing its Parliament's as well. And of course, you know that what is a parliament it's it's a place where numerous people meet to debate things. And our parliament is at the large end with 650 members of the House of Commons and an even larger number of members of the House of Lords. And those kinds of meetings have been made impossible by the pandemic, not just in the UK, but in places all over the world. So that's required, again, initially as a matter of necessity, parliamentary procedures to change. And what that has often meant is that the number of members who are allowed to attend Parliament's has been reduced. How do we decide which member which members are allowed to attend in many places, actually, not in the UK. But in many places. It has been party leaders who have designated who's allowed to attend the leaders can attend, but many of their backbenchers can't. And in the UK, I'm rather ashamed of the fact that we have moved to a system initially, we did extremely well with the implementation early on, or virtual proceedings, which are enabled members, albeit in a, you know, a slightly unsatisfactory way over zoom. But everybody had the right to participate, the government shut those procedures down to a significant extent, at quite an early stage, we've actually had a quite shocking situation where a large number of members of the House of Commons for seven whole months were barred from participation in legislative debates,

Vivienne Parry  19:00  
which is the ordinary,

Meg Russell  19:02  
absolutely extraordinary, the government simply refused to extend participation rights to people who were shielding from COVID due to serious health conditions, which is extraordinary. But they also shut down the virtual voting app which had been established, which was really was an impressive thing that the parliamentary staff managed to put together this app to allow people to vote electronically very quickly early on in the in the pandemic, but the government shut that down. And the situation that we have now is that just eye watering 595 MPs are now voting by proxy. And most of those votes are held by party whips. So that hugely strengthens the power of the party machine. And we've seen things like that in different ways operating in Parliament's around the world. So it's not just the restrictions in law that we need to worry about in terms of erosion of democratic standards. It's also the operation of our institutions. And how leaders are gaining power against those who would normally be holding them to account, which is really quite worrying.

Vivienne Parry  20:06  
Jeff, has your work led you to believe that we've seen abuses of power here? Or has the UK in fact been quite conservative with a small see in terms of how they've responded legally? I mean, could they have gone further for instance?

Jeff King  20:23  
Well, there's been quite a bit of pressure to rely on the Civil Contingencies act of 2004, people thought that that emergency powers framework would have been better, at least in the early stages of the pandemic, because regulations under that act need to be approved by Parliament within seven days, and then they expire within 30 days. But under that act, the parliament could have enacted so called Henry the Eighth measures, which are executive regulations that amend primary acts of Parliament. And that would have been a sweeping framework of powers, they could have done whatever they want it under that system. And also, they wouldn't have had to give a public health regulation making powers to Scotland and Northern Ireland, so it could have gone farther. Nevertheless, the constraints on the UK his powers are the government's powers are, as I said, it could be restricted more temporarily. What I have found, though, is that the Public Health Act, having been enacted in the post SARS legal context, does have a range of conditions and qualifications built into it. So on temporal restrictions, it's weak, but on other restrictions on the powers, you can find them there. So I would say that some other countries have given more plenary powers to their governments than the UK has had, but they were more time bound. So it's hard really to compare. Which of these is worse. I just wanted to mention as well that it has been a fact that many of the measures are quite popular. The supports for the lockdowns, for instance, have been very strong and there's been intense criticism that the lockdowns weren't brought in sooner in the process. And at the same time also, there's incredible pressure from many, many areas business and popular pressure to relax the lockdowns as well. I think that needs to be borne in mind that when people speak about the intrusiveness of these measures into civil liberties, the government is probably very much not keen and imposing these measures in the first place. And they're very stringently advised to adopt these measures by groups like sage. And that needs to be borne in mind,

Vivienne Parry  22:31  
which goes back to the point about having popular support. And, you know, people are always keen to vote for those who who get the trains to run on time, Melanie, how have ethical concerns being promoted up to legislators, how are they made aware of them in a sense that they can think about what needs to be done about them?

Melanie Smallman  22:54  
That I think was one of the things that we were most concerned about and why we set up the ethics accelerator in the first place, because what we could see at the beginning of the COVID pandemic was that the expert advice that was being given to government was, I mean, certainly at the beginning was almost entirely around epidemiologists, and molecular biologists, modellers, and behavioural scientists came in a little bit after that, but these kinds of formal ways of thinking through some of the ethical dilemmas were just absent. And the fact that in the beginning, this was dealt with as a health crisis. But very quickly, it became apparent within weeks of the lockdown that this was a massive crisis of inequality. And the idea that not everybody is going to have the same capacity to respond to a lockdown. And the differences that exist amongst our communities are brought to the fore. You know, it felt like it was coming as a surprise to policymakers and advisors. So it became obvious that to us that while there is quite a lot of ethical expertise in the academic community in the UK, it wasn't being channelled in to government in the way that it needs to. So since then, that's been our task is to to anticipate the issues that are coming up to both develop advice and ways to enable policymakers to think it through the challenge, I think of doing that has just been explained by Meg and Jeff, is that, you know, doors are not open in the way that they have been in the past. So actually, accessing the people who are making the decisions is an increasingly difficult challenge, but it's what we're focusing on right now.

Vivienne Parry  24:42  
I mean, the most obvious things for me are things like why would anybody actually want to have and do lateral flow testing in their home, when if they prove to be positive, they're going to be off work and isolating and not paid?

Melanie Smallman  25:00  
Yeah, well, and similarly, questions around the the vaccine passport so immunity passports on one hand, it's got huge potential for discrimination and quite terrifying level of data collection and surveillance on citizens health status. On the other hand, if there is going to be demand, if it's going to enable people to feel safe going about their business, would we be it? Would we be more comfortable allowing a private business to own that data and to collect that data? So there's quite serious questions that need to be thought through and that we're trying to kind of shine the light on right now.

Vivienne Parry  25:42  
And it's interesting, isn't it, I get back to the trains running on time that a hallmark of autocracies is always that they are the people that can deliver safety and security. But I want to finish by thinking about the future. I hope this may be the only pandemic that we see in our lifetime. But I suspect it may not be. So if there is another one. How does the UK legal system needs to change now, to make us better prepared for next time? I mean, I know we've been talking about some of the public health legislation, which was extraordinarily out of date, and date back to almost to war time. So let's start with you on this one, Jeff.

Jeff King  26:25  
I think that the main failure, as I've seen, it is the failure to distinguish between in public health guidance provided by the government to distinguish between what is advised and what is legally required. That's led to an enormous amount of confusion amongst the public and amongst the police in understanding what people need to be doing and what you can have a legal liability for. I also think that the Public Health Act of 1984, as amended in 2008, needs to be amended to insert some enhancements of parliamentary control some perhaps tighter restrictions on the use of the urgency procedure, which allows government to make law before it goes before parliament, and to impose time limits on how long that law can exist for To be more specific, I think we should be looking at a three month period, or the more intrusive measures for public health. And I would like to say as well, though, that some of the benefits that have not been noticed as widely are the fact that the law courts adopted incredibly quickly, and I've remained open for public law cases. The devolution of lawmaking powers to the Northern Ireland Department of Health and the Scottish Government have led to quite a bit of lawmaking there, which is been good for democracy and furthering the devolution arrangements. And these these should be remembered as well as successes.

Unknown Speaker  27:51  
Meg,

Vivienne Parry  27:52  
how about you? What would you want to see for the future?

Meg Russell  27:56  
Well, I agree with what Jeff just said. And I would say a review of how the UK deals with delegated legislation is long overdue. This was a matter of controversy. Before Brexit, it was made more central and controversial by the Brexit process. And now, you know, it's absolutely clear that we need a root and branch review of how power is delegated and how delegated power is used and scrutinised. I think another thing that we drew attention to in our briefing was the weakness of financial accountability of the government to the House of Commons. I mean, we are seeing unprecedented levels hundreds of billions of pounds worth of public spending, like the lockdown measures, this may be necessary, but we would get better quality policy if it were properly scrutinised with difficult questions asked, you know, the point that you made about the lateral flow tests and whether people can afford to stay at home is a really nice example of how if the government was subjecting its policies to awkward questions, some of these problems might actually have been ironed out, I think some of the problems that we've seen would not have existed, had scrutiny been more robust. And the other thing that the process has highlighted for me is another thing that I've been concerned about for a long time is the degree to which the government in the UK controls what the House of Commons is even allowed to discuss. And we've seen this with respect to you know, what I was talking about with the proxy votes, for example, and the members being excluded from business, the government has simply been able to block things getting onto the agenda that members wants discuss senior members have been pressing for there to be decisions on reintroducing electronic voting, for example, the government has simply refused. Now, I just think this is entirely inappropriate. And I think that both on the procedural side and the legal side, we've seen that basically, governments will always tend to take powers if they can, but you know, you've you've referred to you've used the word authoritarianism a few times, that is where governments constantly accreting more powers takes you where are living in an era where there is this concern about democratic backsliding and the rise of authoritarianism. And we've seen ironically that some of the authoritarian leaders look at bolson arrow in Brazil, you know, look at India, look at the US under Trump. authoritarian leaders do not produce good quality policy, and they've handled the crisis very, very badly. So I think that's a good advertisement for checks and balances. And I think in various ways, when we can get back to something approaching normal, we need to really review the robustness of our checks and balances in the UK, but so do many other countries as well.

Vivienne Parry  30:35  
Melanie, let's close our session today, by thinking of the ethics of all of this, how do we ensure in the future that ethical principles are properly reflected in legislation of the future?

Melanie Smallman  30:52  
Well, I think in terms of pandemics, the thing that is really clear is that from the start, we should have understood that this wasn't just a crisis in hell for medicine. This was a crisis in economics and a crisis in politics as well. And thinking about it in the round is the clear way to understand the the kind of scale of the ethics that need to be thought through. And I think just one last thing that I've been thinking about all along, but has really struck me listening to my colleagues is that even before we get to another pandemic, the thing that has become clear to me during this one, is that really troubling trajectories and patterns that have been happening all of the time anyway, have been brought to the fore in this pandemic. And as we go forward, those troubling trajectories are ethical concerns around you know, how we live, how we live in a democracy, what kind of democracy we have, we have to use the pandemic as a way to actually address those and to have that conversation and not wait for another emergency before we remember that these are concerns that we need to address.

Vivienne Parry  32:03  
Thank you for that. And Melanie, and didn't I say that this was a top team. They really have been terrific. So thank you to all of you. You've been listening to Coronavirus: The Whole Story. This episode was presented by myself Vivienne Parry produced by UCL was support for the UCL Health of the Public and UCL Grand Challenges and edited by the wondrous Cerys Bradley I was joined today by Dr. Melanie Smallman, and professors Meg Russell and Jeff King. If you'd like to hear more of these podcasts from UCL Minds, I thoroughly recommend them subscribe wherever you download your podcasts or visit ucl.ac.uk forward slash Coronavirus. And don't forget to check out the new disruptive voices from UCL challenges whilst you're there. This podcast is brought to you by UCL Minds bringing together UCL knowledge, insights and expertise through events, digital content, and activities open to everyone. Hope to be with you again soon. Bye for now.