Phil Trendall comments on the details of the latest reports into the UK Government’s handling of the response to the Covid-19 outbreak and he stresses that although they might not attain the media attention they deserve, their findings are significant nonetheless.
The recent reports carried out by the Public Administration and Constitutional Affairs Committee (PACAC) are important – the first considers the parliamentary scrutiny of the Government’s handling of Covid-19, while the second looks at the question of a public inquiry into the response. Image: Sergey Nivens/123rf
Parliamentary select committees often work quietly in the background, only occasionally breaking through into the limelight. 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.
The first report focuses on the early days of the crisis, but even so, it has been produced quickly. The volume of evidence taken is not large, but the committee was very selective about who was called to give oral evidence; it was well served by its witnesses.
The committee had a fair amount to say about the absence of parliamentary scrutiny and about the decision not to use the Civil Contingencies Act 2004 (CCA):
“The Government’s desire to find alternatives, such as bespoke primary legislation, to using the emergency provisions of the Civil Contingency Act 2004 is understandable. Bespoke primary legislation has the advantage of going through the stages of Parliamentary scrutiny. 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)
The Committee were concerned about the lack of opportunity for Parliamentary scrutiny. The requirement to wear face covering on public transport is cited as an example where regulations were introduced on June 4, 2020, but the legislation that was brought in on June 15 was not debated in the House of Commons until July 6.
They could have added that, despite the announcement, the detail contained in the regulations was only available on the day they came into force – leaving no time to prepare for those responsible for enforcing them.
The report takes a robust position on the merging of legislation and guidance and gives examples whereby ministers misstated the law. It is accepted that guidance is required in addition to the legislation itself, but it is clear that mistakes have been made. The tone of the report is measured and a good example of what a select committee can contribute to the debate.
The second report looks at the question of a public inquiry into the government response to the pandemic. The report reminds us that the Prime Minister told the House of Commons on July 15, 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 examines this issue in some depth. It does not adopt a rose-tinted approach to public inquiries. Indeed, after taking evidence from those with experience of public inquiries, it describes the downsides to the public inquiry 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 expect that this part of the report will appear in many dissertations and essays in years to come.
Overall, the committee was 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)
In my opinion, 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 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 co-operation 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.”
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, and it then goes on to consider who – ie what sort of professional – should chair the inquiry and whether or not there should be a panel. The committee suggests that consideration be given to a non-judicial chair who is 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. Unsurprisingly, they see a role for select committees in keeping a grip on government’s reactions to an inquiry report. Conversely, on the subject of the devolved administrations, I was surprised to see a recommendation that separate inquiries are established for each nation of the UK. The committee gives some practical reasons why this is a good idea.
Like most detailed reports, they are worth reading in full. Such reports show that select committees are able to move quickly and produce high quality investigations that do not overreach themselves. We now await the Government’s response.
Read the reports in full, here.
Phil Trendall’s article, Where next for UK emergency planning? in CRJ 15.3, is available here to subscribers.
Lucian Hudson’s article in CRJ 15.2, Independent inquiry: Purpose and scope, can be read for free, here.