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Rebalancing Upstream and Downstream Scrutiny of Government during National Emergencies

This report forms part of the project The Role of Good Governance and the Rule of Law in Building Public Trust in Data-Driven Responses to Public Health Emergencies, a COVID-19 Rapid Response research project funded by the Arts and Humanities Research Council on behalf of UK Research and Innovation (grant AH/V015214/1).

Scrutiny comes in many forms, which can lead to many outcomes. Public scrutiny of Government is one such form, which is an element of democratic governance that aligns with the rule of law. Yet those experiencing and observing the ongoing administration of life in the UK during the COVID-19 pandemic might be forgiven for arriving at the conclusion that public scrutiny of Government is an ideal currently evaporating into the ether.

The marginalisation of Parliament during this pandemic is well known. Many government measures that have been introduced to address COVID-19 have received little or no scrutiny from parliamentarians. As highlighted in an evidence submission provided by the Bingham Centre to the Public Administration and Constitutional Affairs Committee (PACAC), instruments have become law without parliamentary scrutiny, as well as entering into force before they have been put in front of Parliament. The subsequent PACAC report outlines the importance of ensuring that measures which may adversely impact the exercise of human rights are enacted using primary legislation, so as to provide Parliament 'the appropriate amount of time to consider, scrutinise and where necessary amend the Government's proposals' (para. 83). Many regulations that have been implemented during this time have not been made using primary legislation, even though they have interfered with and restricted the exercise of human rights. Whether these measures were necessary and proportionate in the pursuit of the legitimate aim of safeguarding public health can be debated on a number of grounds. However, the focus here is on another matter: the coupling of this minimal parliamentary scrutiny of government measures with the apparent trend of judicial deference towards these very same measures. The combination of these two factors depicts a lopsided separation of powers that can enable executive abuse.

This article was first published as a post on the UK Constitutional Law Association blog on 21 September 2021, It is reproduced with kind permission of the UKCLA blog editors.

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