A First Rushed Reflection on Two Reports That Are Worth Reading
Parliamentary select committees often work quietly in the
background only occasionally breaking into the limelight. Taken together their output is amazing. With very few staff and members from all
parties they make an important contribution to Parliament’s duty to hold the
government of the day to account.
Today’s reports by the Public Administration and Constitutional
Affairs Committee are important ones. The
first report considers the Parliamentary Scrutiny of the Government’s Handling
of Covid-19. The second looks at the
question of a Public Inquiry into the response.
At the time of writing this I do not know the scale of the media
interest or what the government’s response will be. Both reports will not be welcomed by the
government – whatever they say officially.
The first report obviously dwells on the early days of the
crisis. Even so the report has been
produced quickly. The volume of evidence
taken was not large but the committee were very selective about who was called
to give oral evidence. They were well served by their witnesses.
The Committee had quite a bit to say about the absence of parliamentary
scrutiny and about the decision not to use the Civil Contingencies Act 2004
(CCA):
“However, the Committee is not
convinced that the Civil Contingencies Act could not have been used for
COVID-19 and believes there was a potential role for the Civil Contingencies
Act in providing a “stop-gap” for more detailed scrutiny of the Coronavirus Bill
to take place.” The potential use of the Civil Contingencies Act as a
“stop-gap” should be considered by the Government in response to emergencies in
the future. Furthermore, the Coronavirus Act does not have the same safeguards
as the Civil Contingencies Act. It is troubling the Paymaster General
referred to these safeguards as a reason not to use that Act. Any separate
legislation to deal with civil contingencies—and particularly legislation that
needs to be passed very quickly—should include safeguards and scrutiny
provisions that are equivalent to those in the CCA, with regular renewal of
powers allowing for more detailed Parliamentary scrutiny that, due to
expediency, cannot be given during the passing of emergency legislation.
35. The Government’s reticence
to use the Civil Contingencies Act in response to a genuine national emergency
calls into question how fit for purpose that legislation is.”
(PACC 2019/2020 4th Report p13
Emphasis added)
In general terms the Committee were worried about the lack
of opportunity for Parliamentary scrutiny.
The example of the requirement to wear face covering on public transport
is cited as an example:
“In relation to the
regulations mandating the use of face coverings on public transport, plans for
such legislation were announced by the Government on 4 June 2020.47 But the
relevant legislation, made on 15 June, was not debated in the House until 6
July”
(Ibid p17)
They could have added that despite the announcement the
detail contained in the regulations was only available on the day it came into
force – leaving no time for those responsible for enforcing it to prepare.
In more general terms the report is also clear:
“The Committee is concerned by
both the scale of legislation and the inability of Parliamentarians to
effectively amend COVID-19 legislation. The scale of legislation, covering a
large number of statutory instruments made under multiple sources, makes it
very difficult for even experts to follow what legislation is in effect. Even
more concerning is the fact that Members have no mechanism to amend this
legislation which is being made under statutory instrument. All stages of the
Bill were taken through the House of Commons in one sitting day. This means
Members had just one sitting day to fully influence and amend the Coronavirus
Act. Members have no power to amend statutory instruments made under that Act.
As we detail below, Members have had no opportunity to meaningfully engage with
and amend the lockdown regulations under the Public Health (Control of
Diseases) Act 1984.
(Ibid P17)
The report takes a robust position on the merging of legislation
and guidance and gives examples whereby ministers mis-stated the law. It is
accepted that guidance is required in addition to the legislation itself but
are clear that mistakes have been made:
“It is prudent of the
Government not to seek to legislate for every eventuality, which would lead to
a myriad of confusing, flawed and ultimately unenforceable provisions and exceptions.
There is, therefore, a clear role for both guidance and legislation in response
to the COVID-19 pandemic. This point notwithstanding, it is incompatible with
the rule of law for the Government to misrepresent what the law actually is at
any time. There have been disappointing examples of this misrepresentation
during the pandemic, such as describing people in parts of the North of England
as being “banned” from doing things that they were not yet banned from at all.
Ministerial declarations to the public are not the same as legislation and in a
Parliamentary democracy they should not be treated as such. In future the
Government should ensure its communications are clear as to whether something
is guidance or whether it is a requirement under the law. An example of clearer
communication has been over the use of face coverings in shops and public
transport”.
(Ibid p24)
The tone of the report is measured. It does not grandstand. It is a good example of what a select
committee can contribute to the debate.
The second report out today looks at the question of a
public inquiry into the government response to the pandemic. The report reminds us that the Prime Minister
has told the House of Commons on 15th July 2020 that an independent
inquiry will be established. The Prime
Minister did not indicate when this would happen and nor has he said what form
it will take. The committee examine this
issue in some depth. They do not adopt a
rose tinted approach to public inquiries.
Indeed, after taking evidence from those with experience of public
inquiries they describe the downsides to the PI process. The report’s summary of the pros and cons of
inquiries will be of use to academics and observers in future times – and not
just around the response to health emergencies.
I would expect that this part of the report will appear in many
dissertations and essays in the years to come.
Overall the committee were very wary of the ‘blame game’:
“The coronavirus pandemic did
not arise because of human error or systemic failures of policy. Consequently,
a public inquiry into how the Government has responded to the coronavirus
pandemic should be primarily focussed on improving policy. It should ensure
that the right lessons are learnt from any mistakes that have been made.
Accountability cannot be ignored: for learning to take place, it is important
to understand the events that have occurred, the decisions that were taken and the
reasons for that. The impact of decisions on those most directly affected by
them must be understood. There must be honesty about mistakes made. But the
public inquiry should be forward-looking and the primary purpose of any look
backwards should not be to apportion blame but to understand how to ensure that
the country is better prepared for any future pandemic. The inquiry should be
organised on this basis. This should include avoiding the excess adversarialism
of the quasi court-style proceedings of some inquiries”.
(PACC 2019/2020 5th
Report P8)
This part is a tad idealistic, if not slightly
confused. An inquiry into the response will
inevitably highlight mistakes. The
stakes are high. Thousands have
died. The bereaved will want, and are
entitled to, an explanation of shortcomings that amount to incompetence or any wilful
failures to plan for the foreseeable.
There is no appetite for a witch hunt but society does need a reckoning
and a holding to account of those whose decisions were wrong, for the wrong
reasons.
The committee considered whether or not a Parliamentary Commission
could do the job but the sheer scale of the task means that this is really a
non starter. The next question was
whether or not an inquiry should be one set up under the Inquiries Act
2005. Such an inquiry would have powers
that are denied to select committees and more ‘informal’ inquiries and
reviews. After some soul searching (and
careful balancing) they conclude that that the inquiry should be a statutory
one:
“It is clear that
non-statutory inquiries are able to proceed more flexibly outside the confines
of the Inquiries Act. Their reliance on cooperation can also create an
environment that is more conducive for evidence gathering. Nonetheless, the
safeguard that the statutory powers provide for accessing evidence or
administering oaths means that it would be preferable that an inquiry into the
Government’s response to the coronavirus pandemic should be established under
the Inquiries Act.”
(Ibid p10)
The report also addresses the issue of timing and urges that
the inquiry is established without delay to allow the logistics to be attended
to:
“The Government has committed
to holding a public inquiry into the response to the coronavirus. It is correct
to do so. The Prime Minister has said, however, that the inquiry will not be
held whilst efforts to combat the pandemic continue. Given the time an inquiry
typically takes to begin its evidence gathering, the Government should announce
the inquiry into the response to the coronavirus immediately to allow time to
set up the secretariat and other administrative functions which should mean it
could start taking evidence early next year. Delaying the set-up will
inevitably delay the inquiry’s ability to start work in earnest.”
(Ibid p10)
The report goes on to consider who (in the sense of what
sort of professional) should chair the inquiry and whether or not there should
be a panel. They suggest that
consideration be given to a non judicial chair supported by a panel.
Finally they turn to the always difficult area of the Terms
of Reference and what happens to the
product of any inquiry. Not surprisingly
they see a role for select committees in keeping a grip on the government’s reactions
to an inquiry report. On the subject of
the devolved administrations on the other hand I was surprised to see a
recommendation that separate inquiries are established for each nation of the
UK. They give some practical reasons why
this is a good idea. This is perhaps one
of the few areas of the report where one can see that this is a committee of politicians.
Like most detailed reports this is worth reading in
full. Doing this will not be a waste of
time.
These reports show that select committees can move quickly
and produce high quality investigations that do not over reach themselves. We await the government response. Will it be virtually instant (on the chocks
ready to go – ‘oven ready’ perhaps?) or will it be kicked into the
undergrowth? By the end of week we
should have some idea.
Philip Trendall
10 September 2020
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