Coronavirus Act 2020: Temporary Provisions

Lord Forsyth of Drumlean Excerpts

Monday 28th September 2020 Lords Chamber

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, I agree with everything that the noble and learned Lord, Lord Morris, had to say about parliamentary involvement, but in defence of Cromwell, it was not Cromwell who abolished Christmas but the Parliament.

I asked my noble friend the Minister in the debate on Friday on the coronavirus regulations if he was confident that the Government were acting legally in using the public health Act to restrict the liberties of uninfected people and to close down uncontaminated businesses. I pointed out to him that I could not see powers in the public health Act to do so. I listened to him today and ask him: what happened to the assurances given by his department, the Department of Health, in 2008 to your Lordships’ Constitution Committee that these powers were exercisable only in relation to infected individuals and were intended to authorise only provisions which were

“urgent yet minor in scope and effect”?

I asked him why the Government were not using the Civil Contingencies Act, which, under Section 22(3), empowers Ministers to

“make provision of any kind that could be made by Act of Parliament”.

Examples given in the legislation include regulations which prohibit movement to or from a specific place, assemblies at specific places or times and travel at specific times. The difference is, of course, that the Civil Contingencies Act requires robust parliamentary scrutiny. Emergency regulations must be laid before Parliament in draft before they are made and will lapse unless they are approved by both Houses within seven days. They are subject to renewal every 30 days, and Parliament can amend them at any time.

I asked my noble friend if the motivation for resorting to the public health Act, which has no such protections, was to enable the Executive to avoid scrutiny and parliamentary debate. He did not reply, and, under the bizarre rules we have, I was unable to intervene. Regulations made under the public health Act do not require approval for 28 days, plus any recess period, and cannot be amended or, if approved, revoked. They remain in force for as long as Ministers like.

I am not a lawyer, so, over the weekend, I contacted Lord Sumption for his advice, and am very grateful to him for sending me a memorandum which sets out the position very clearly. I have his permission to share it. I am told I cannot place it in the Library unless the Minister agrees, but I would be happy to send it to anyone who would like to read it.

My noble friend Lord Bethell did tell me, as he has repeated today, that the Civil Contingencies Act is

“expressly concerned with threats that we could not have expected. Unfortunately, we are at a stage with this epidemic—indeed, even at the very beginning of the epidemic—where the lawyers have judged that this kind of regulation does not fit under that definition”.—[Official Report, 25/9/20; col. 2026.]

The Act applies to emergencies, which are defined as

“an event or situation which threatens serious damage to human welfare”

in a place in the United Kingdom.

I say to my noble friend that he needs to get some better lawyers, and colleagues with more respect for Parliament. Under the CCA, which applies to the United Kingdom as a whole, he would have avoided different rules in different parts of the UK, and the First Minister of Scotland adding to public confusion.

Today, once again, we are not even being allowed a substantive vote. I am grateful to my noble friend Lord Robathan for his Motion, which I will support, in protest at the cavalier way in which parliamentary democracy in our country is being suffocated. Our economy is being trashed; public expenditure, out of control; good businesses, destroyed; thousands of patients, denied life-saving treatment; disabled people, unsupported; our children’s future, mortgaged and damaged; the people’s mental health and welfare, put at risk; and this House and the other place remain marginalised and impotent. As Edmund Burke put it in 1780:

“Bad laws are the worst sort of tyranny.”