PACC Inquiry into COVID 19 Response and the Coronavirus Act 2020

The House of Commons Public Administration and Constitutional Committee have been collecting evidence on the response to the Covid 19 pandemic and on the Coronavirus Act 2020.  The deadline for written submissions is 27th July and I would urge people with knowledge of this subject to provide the committee with a response.  Details can be found at:   https://committees.parliament.uk/work/310/responding-to-covid19-and-the-coronavirus-act-2020/

I would draw your attention to the fact that the terms of reference of this inquiry have been updated to include the prospect of a public inquiry.  IT IS THEREFORE IMPORTANT that submissions are made by those with knowledge of this subject.

I have submitted a short note giving (for what very little it is worth) my views on this subject. See copy below. I am submitting a supplementary note on the Public Inquiry issue.

Response to the Public Administration and Constitutional Affairs Committee Inquiry into the Response to Covid-19 and the Coronavirus Act 2020.

Name:                         Philip Trendall

Contact:                      XXXXXXXXXXX

Date:                           25th June 2020

Type of Response:      Individual

Word Count:                1842   

INTRODUCTION

This is an important inquiry and one that may be the precursor to larger scale inquiries with  wider remits.  It is good to see that the Committee is seeking a wide range of views on this issue and I am pleased to submit this short note in the hope that it will be of assistance to the Committee.

I write this as an individual.  I run a small consultancy and training firm, Scott Trendall Ltd, that provides services to public and private organisations in the field of civil protection.  I am a former police officer and have been involved the preparation for, and response to, emergencies for many years.  I am a Fellow of the Institute of Civil Protection and Emergency Management (ICPEM) and an Associate Member of the Emergency Planning Society (EPS).  I regularly ‘blog’ on issues connected to civil protection, including on the various emergency regulations and their enforcement:  https://scott-trendall.blogspot.com/

My response is limited to those few areas where I believe my evidence may be helpful to the Committee.

RESPONSE

The Coronavirus Act 2020 was a rushed piece of legislation.  Rushed legislation is rarely good legislation and there was little time for scrutiny before this became law.  Those charged with drafting the terms of the Bill are to be congratulated for pulling together such a major piece of legislation so quickly.  This has been true of all the emergency legislation introduced in the last few months.  But, despite their efforts the Act looks like a patchwork quilt of requirements from across government departments.  It covers a very wide range of topics from powers to deal with potentially infected persons through to the number of signatures required from the Lords of the Treasury.    There can be no doubt that the it would have been a better Act if it had been thoroughly scrutinised.  Some parts would better sit elsewhere for use on a contingency basis.  For example, postponing elections is a big issue in a democracy and would have benefited from advance debate as part of more appropriate legislation.

It could be argued that two years is a long time for the Coronavirus Act to sit on the statute book. One year should be long enough for a better piece of law to be drafted although Parliament may choose to make other, more general, provisions.

Many working in the civil protection/emergency planning/resilience world were surprised that the Civil Contingencies Act 2004 (CCA) was not used during this emergency.  In the Summary of Impacts provided for the Coronavirus Bill this was explained thus:

““We considered using the Civil Contingencies Act (2004). However, part of the triple-lock on activation on this legislation is that you cannot see the emergency coming. Therefore, as there is doubt whether the ‘urgency’ can be evidenced, there is legal risk that CCA measures, as secondary legislation, could be struck down and leave the government without the powers it needs to prepare for and respond to a RWCS outbreak”. (SofI).  https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts/coronavirus-bill-summary-of-impacts

Doubts about the usefulness of the CCA have been around for some time.  Much has changed since 2004 and the provisions of the Act pre-date the experience of many more recent events.  In his letter to the Chair of your Committee the Chancellor of the Duchy of Lancaster mentions a review of the Act but this seems to have been an internal Cabinet Office review.  There was no public or professional consultation.   The prospect of needing a separate Act of Parliament for every long lasting disaster (pandemic ‘flu?) is not one that supports the current arrangements.

The obvious question is that if the CCA is of no use in an event that has killed between around 50,000 people then what is the point of having it?  The Committee may wish to conclude that there is a need for a comprehensive overhaul of civil contingencies legislation and arrangements in an effort to produce a system that is better able to respond to all potential disasters. 

The use of Public Health regulations is confusing.  The current regulations have been much amended and are now difficult for lay people such as me to read.  The fact that there are separate regulations for face coverings on public transport and for the devolved administrations creates a maze of emergency provisions that only experienced lawyers would be comfortable navigating.  This issue has been compounded by what can only be described as sloppy use of language by ministers and other leaders.  Phrases such as:  “you must” “it is mandatory” “it is compulsory” have regularly been used both to describe legal requirements and in an attempt to get people to follow the guidance.  Even some senior police officers have spoken of ‘enforcing’ the guidance.  Take for example the current rules around wearing face covering on public transport in England (and the variants for the other nations).  It is an offence not to wear a face covering on board a train and offenders may be issued with a fixed penalty notice.  On a platform at a station one is required to wear a face covering, one presumes as some sort of condition of travel, but this is not clear.  Expecting railway staff to physically eject people who do not comply is unrealistic.  Absolute clarity of messaging is required in crisis and it has been disappointing to hear ministers and others use the words ‘guidance’ and ‘regulations’ as if they were interchangeable.

In future consideration must be given to how emergency laws can be enforced.  The police have found themselves in a very difficult position, with no time to properly brief or train their officers.  Early attempts at enforcement were unsuccessful and cases had to be withdrawn.  It was pleasing to see that the errors in these first attempts at enforcement were identified by the police and the CPS and were rectified without the need for third party intervention.  It is clear to me that future contingency planning should include detailed planning for emergency powers.  These plans need to be exercised and tested in the same way as other plans.  Organisations such the College of Policing have done well to produce useable briefings for officers confronting new, and frequently changing, legislation.

In terms of messaging I would suggest that ‘4 E’ approach:

Engage

Explain

Encourage

Enforce

adopted by the National Police Chiefs Council and the College of Policing is one of the most successful examples of a strategic framework guiding operational activity that has been seen in the current crisis.

The divergence in policy between the devolved administrations and the UK government has been unhelpful.  The virus does not respect geographic boundaries that are the product of history.  The difference in approach (eg Stay at Home v Stay Alert) only serve to undermine confidence in what is being said by the nation’s leaders.  I have no doubt that the governments in the devolved administrations have done what they believe to be right for the people of their parts of the UK.  A pandemic is not the time for political point scoring, although it is a time for continued scrutiny.  We have been left with the situation that when the Prime Minister speaks at a briefing he does so as Prime Minister of England rather than of the UK.  There is of course no such legal or constitutional position.  In a UK wide crisis (or in this case an international one) there should be a UK wide set of decisions and guidance.  The Committee may wish to consider the appropriateness of devolution arrangements in the context of a worldwide pandemic.  In saying this I am not suggesting that London’s position is any better informed or is in anyway more important than those held in Belfast, Cardiff or Edinburgh.  Nor would I understate the importance of local flexibility where this is needed.  But in such times as these the UK requires a single, clearly articulated, voice.

FURTHER POINTS FOR CONSIDERATION

1.    Several notable figures have pointed out that there are very few emergency planners involved in the discussions about how to deal which each phase of the response.  Indeed many in the emergency planning community are concerned that their voice has not been heard at national level, especially as we turn to look at preparations for further outbreaks.  Of course the Civil Contingencies Secretariat (CCS) within the Cabinet Office has been working flat out but there is no sign of any attempt to engage systematically with the emergency planning profession via the representative bodies (ICPEM and EPS).  The Committee may wish to know, for example, what percentage of staff in the CCS hold formal graduate or post graduate level qualifications in civil protection/emergency planning related subjects.  There is a large untapped resource available in both the private and public sectors with considerable expertise in emergency planning.

2.    The Committee may find it helpful to consider how useful the CCS produced Resilience Standards have been.  These are short guidance notes issued to Local Resilience Forums in England and Wales.  They include a standard on communicating with the public in crisis and one on preparing for an influenza pandemic.  These standards are available to persons employed by certain organisations, including all local authorities.  They are not available to the general public and I have not been able to obtain copies from the CCS.  However I am aware, in general terms, of their content and there is much to commend them.  The unwillingness of CCS to publish or share them is somewhat odd but I do not believe that should not be taken as an indication of any attempt at a ‘cover up’ or that CCS has anything to hide.

3.    The scope of the Committee’s inquiry is obviously limited and constrained by its remit.  There have been many calls for a public inquiry into the preparations for, and response to the pandemic.  I support the idea of an independent inquiry to be established under the Inquiries Act 2005.  The huge number of deaths caused by this disease demands the level of scrutiny that only an inquiry of this type can deliver.   I would suggest that it is only by having a formal inquiry that we can avoid this becoming a political football or an abuse of hindsight.  People who have been making difficult decisions in very difficult circumstances have nothing to fear from such an inquiry conducted by an experienced judge. There is no appetite for a witch hunt, but there is a need to be very clear about what has worked and what hasn’t.  Internal and multi agency debriefs are not enough (although they are essential in their own context).  We must learn from what has happened and we must ensure that we are in a better place to confront what might face us in future.

I would be pleased to expand on these comments if requested to do so.

Philip Trendall

June 2020