Ex-lord chief justice: UK parliament must scrutinise Covid rules

Lord Thomas of Cwmgiedd, the former lord chief justice of England and Wales, has called for greater parliamentary scrutiny of the government’s emergency coronavirus legislation because vital freedoms are being “curtailed”.

His comments follow a lament by Lady Hale, the last president of the supreme court, that parliament “surrendered” control of its constitutional role subjecting legislation to effective scrutiny at the start of lockdown. She described the regulations as “draconian” and said it was “not surprising the police were as confused as the public as to what was law and what was not”.

Concern over the parliamentary deficit is growing in legal circles as scores of MPs express support for an amendment by the Conservative backbencher Sir Graham Brady that calls for parliament to have an “opportunity to debate and vote upon any [emergency health] secondary legislation with effect in the whole of England or the whole UK before it comes into effect”.

Thomas told the Guardian: “The rule of law requires proper scrutiny of and accountability for measures promulgated by a government under delegated powers. This is a duty that parliament must carry out, particularly when important freedoms are curtailed.

“Moreover, when it is known that the measures will be independently and publicly scrutinised by parliament, experience has shown that generally the result is better thought through provisions, a clearer distinction between what is law and what is guidance and a more cogent explanation of the justification for the measures in the light of the available alternatives.”

Thomas, who was head of the judiciary between 2013 and 2017, said he was moved to speak out because he was closely involved early in lockdown with drafting a set of principles for the European Law Institute on emergency Covid-19 legislation, to ensure that “everything that is done accords with the rule of law and democratic values”.

The Bar Council, which represents barristers across England and Wales, also called for greater parliamentary scrutiny of the government’s emergency coronavirus legislation.

Amanda Pinto QC, chair of the council, said: “We have urged the government to provide for greater scrutiny of the operation of the Coronavirus Act. The opportunity for parliament to debate measures that curtail freedoms will almost certainly lead to better public understanding and a greater chance of more effective laws being passed.

“That approach is in the public interest, balancing the need for agile responses to the national emergency, whilst safeguarding personal liberty as much as possible in the circumstances.”

Calls for the speaker to allow Brady’s amendment to be tabled have also been backed by the democracy activist Gina Miller.

She took two successful legal challenges to the supreme court in 2016 and 2019 – upholding the right of MPs and peers, rather than the government, to authorise Brexit and establishing that Boris Johnson’s attempt to prorogue parliament, preventing debate on a Brexit deal, was unlawful.

Miller tweeted last week: “MPs we elect & pay must be allowed to scrutinise & vote. Email your MP over weekend & ask if they’re backing Brady amendment. If not ask them why not!”

On Monday she added: “The principle of parliamentary sovereignty is fundamental to our democracy, including in times of crisis… It won’t just be Johnson whose reputation is decided by this crisis. [The Speaker Lindsay] Hoyle will be remembered too.”

Calls for MPs to examine the emergency legislation have grown as successive announcements have muddled “guidance’” with what is permitted under the law. New health protection regulations have often been published minutes before coming into force.

The Coronavirus Act 2020, introduced in March, required parliament to have a vote on its extraordinary powers every six months.

The influential Constitution Unit at University College London published a blog at the weekend by Prof Meg Russell and Lisa James, saying: “MPs have genuine cause for complaint: parliament has been consistently sidelined during the pandemic. The most frequent criticism is over the government’s use of delegated legislation.

“Numerous coronavirus restrictions have been imposed through regulations subject to limited parliamentary oversight, with debate often scheduled long after the restrictions themselves were announced or came into force.

“Only [last week] regulations on self-isolation were published, coming into effect just seven hours later, and imposing potential £10,000 fines; yet, despite media briefings eight days previously, these were not debated in parliament.

“Such cases raise clear political questions, but also legal ones: as the underlying legislation allows ministers to bypass parliament only if a measure is so urgent that there is no time for debate.”