‘The changes were made in part by amendment to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350. A note about the unsatisfactory process by which the changes were brought about. The policy was announced by the Prime Minister on television on Sunday night. This was in contravention of the constitutional principle, embodied in the Ministerial Code 9.1 (page 23), that important policy announcements will be made first to Parliament. Draft amendment regulations were then not published until Tuesday afternoon and they came into effect the following day, without any Parliamentary approval. This was possible because the Government used the “emergency procedure” under s.45R of the Public Health (Control of Disease) Act 1984, on the basis that the Health Secretary was prepared to state his belief that, “by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament”. It is however impossible to understand what that urgency was. After all, the amendment regulations gave effect to a relaxation not a tightening of the lockdown: there is no urgent public health reason for such a step. There is no evident reason why proper procedure could not be complied with and Parliament had to be bypassed. Whilst no doubt many people have been itching to get to a garden centre for weeks, resorting to emergency procedures that delay (and in effect largely remove) Parliamentary scrutiny damages public trust in emergency powers precisely at a time when public trust in such powers is most needed. The episode aggravates and underscores the problem which I and others have previously identified, that the regulations require a bespoke statutory basis and that resorting to the Public Health Act as the legal basis for such regulations is an unsatisfactory and constitutionally suspect expedient.’
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UK Constitutional Law Association, 14th May 2020
Source: ukconstitutionallaw.org
