Just read this very interesting post on twitter by Tom Hickman
The making of today’s face covering regulations and some reflections on coronavirus law-making in general.
Consider this timeline:
13 July: Gov announces face masks are to be required in shops
14 July the policy is announced to Parliament (it should have been announced there first). Two justifications given, the first sound in principle but requiring some examination is to protect shop workers; the other, not a public health rationale, is to boost confidence on high street
No further detail is released as to scope or as to nature of enforcement by shops. No regs are laid before Parliament. No opportunity for debate or input into the policy or rules.
22 July: Parliament adjourns for summer recess until September
23 July at 9 am: the face covering regs are ‘made’ (but not published). The public health control of disease act 1984 is used.
1.15, after lunch, face covering regs laid before Parliament (which is now adjourned so nobody is there) accompanied by statement that due to urgency it was not possible for the regs to have been laid before Parliament and approved.
3.45pm or thereabouts and abracadabra! The face covering regs are published and for first time the detailed new criminal laws are revealed and people, shops and police can see what is required of them the next day ...
24 July: face covering regs come into force in England. (No similar in Wales or NI)
This follows the pattern of coronavirus regulations where criminal laws affecting everyone’s daily lives are produced (without consultation, debate or the imprimatur of a majority of the legislature) like a rabbit from a Ministerial hat
Yes it’s a difficult changing situation but the pattern is clear: avoidance of parliamentary scrutiny rather than enabling it. That is unfortunate for many reasons, including that it damages the legitimacy (and quality) of public health laws.
So if Parliament isn’t able to scrutinise the laws in a timely fashion what about the courts?
Well, when C19 SIs are challenged in the courts the Gov strategy follows this pattern: buy time, delay, tread water and by the time the regs come up for a hearing the law has moved on and the issues have become ‘academic’ (eg the Dolan claim and the BA quarantine regs claim).
The net effect is that the power of Parliament and courts as a check on gov is drastically reduced. Both are left with stale laws to scrutinise and thus effectively unable to exercise meaningful principled input into the coronavirus regulations.
This maximises Gov freedom of action and reduces scrutiny of the rationale, vires and the (claimed but not always clear) ‘scientific basis’ for the coronavirus laws.
For an excellent account of the avoidance of Parliamentary scrutiny see