The Commission's Terms of Reference

Aims

1.1 The Commission will:

• Review the legislative powers available for use in a public health emergency, and associated procedural safeguards;
• Consider how emergency legislation was made, used, disseminated and enforced during the Covid-19 pandemic;
• Assess how far current legal frameworks and parliamentary procedures protect the Rule of Law and human rights, and promote accountability, transparency and parliamentary control of executive action;
• Explore these issues in the context of securing timely and effective public health outcomes; and
• Make recommendations for changes in law, policy, practice and procedure in time to inform the UK and Scottish Covid-19 Public Inquiries.

Scope

2.1 The issues examined by the Commission will include:

• The legislative framework that enables the Government to adopt emergency powers during a public health crisis
• The primary and secondary legislation that was used and created in response to the Covid-19 pandemic, including the clarity and accessibility of that legislation, and the process of parliamentary scrutiny of that legislation
• The consideration of safeguards to ensure that the formulation, exercise and enforcement of emergency public health powers is consistent with human rights law
• The interplay between reserved and devolved powers for dealing with public health emergencies
• How Government decision-making during the pandemic was communicated to Parliament, including the transparency of the evidence and advice relied upon by the Government
• The extent to which Government messaging distinguished between binding law and non-binding public health advice
• The extent to which the concerns and interests of different groups, in particular marginalised and disadvantaged groups, were taken into account in the formulation and review of emergency powers
• The formulation, review and exercise of emergency public health powers during the pandemic in selected jurisdictions outside the UK

Method

3.1 The Commission will:

• Consider relevant, publicly available information, including for example published research and parliamentary committee reports
• Invite stakeholders to give written and/or oral evidence
• Publish its findings, conclusions and recommendations in a final report

Membership and Structure

4.1 The Commission is set up with the support of the Bingham Centre for the Rule of Law but will function as an independent body.

4.2 The Commission will comprise no more than 12 Commissioners, who will be individuals with expertise, experience and understanding of UK public health law and policy, parliamentary procedure and the exercise of emergency powers during the Covid-19 pandemic.

4.3 The Commission will be chaired by the Right Hon. Sir Jack Beatson FBA.

4.4 The Chair will lead a Steering Group and will invite Commissioners to join the Steering Group as required.

4.5 The Steering Group will draft the initial terms of reference and will develop a proposed schedule of working groups, expert evidence sessions, and plenary meetings for Commissioners. The Steering Group's draft plans and proposals will be subject to review and approval by the full Commission.

4.6 The Secretariat for the Commission will operate under the Steering Group led by the Chair of the Commission. The Bingham Centre will provide administrative and research support to the Secretariat.