Were there problems with the way the legal process behind that unfolded? I think there were problems which certainly came to light as the pandemic proceeded. And this commission, which was chaired by Sir Jack Beatson and supported by the Bingham Centre, really focused on the rule of law issues, many of which probably could not have been predicted because we didn't know what the nature of Covid 19. 00:01:57:21 - 00:02:29:19 And it was a very specific kind of disease, and it spread in a particular kind of way, and it needed certain kind of restrictions. So we looked at not whether the restrictions themselves were justified. That's something the Covid inquiry is looking at. But when the laws that brought into force the lockdowns, hotel quarantine, the closure of schools, all of those measures which we all remember and were so extreme, certainly the most extreme measures that have been brought in since the Second World War. 00:02:29:21 - 00:02:51:07

We were looking at how they were brought in and what the rule of law implications were. And in terms of what went wrong, I think that, if you put it in a sentence, that Parliament was effectively sidelined through much of the pandemic and wasn't able to or wasn't willing to, or wasn't forced to properly scrutinize what was going on, and ministers were effectively doing it with a swish of a pen. 00:02:51:09 - 00:03:16:24 Yeah. So Adam and I, we were both commissioners for this inquiry and as you said, looking at essentially what the appropriate democratic oversight should be in the future for this kind of emergency law making. What should it look like? And obviously delegated legislation, a lot of lockdown restrictions were introduced through delegated legislation in the form of statutory instruments, which is where you get the minister able to make the law, as Adam says at the swish of a pen. 00:03:17:01 - 00:03:43:18 And we we had to look at what are the ways in which we should change that so that there's more democratic accountability through MPs, through the House of Commons and the House of Lords in future. I'm interested in what did you learn about parliamentary process? I certainly learned a lot throughout the pandemic that I didn't know. I don't think I'd really appreciated how easy it was to pass a piece of secondary legislation on an emergency basis. 00:03:43:18 - 00:04:05:11 So we're talking about hundreds, literally hundreds, and the Hansard Society did a very diligent job of counting them as they went along, and I think got up to about 500, was it? And I estimated at one point it was on average twice a week for the first year, just the lockdowns. So the restrictions were bit were coming in. And each time a piece of secondary legislation emerged 00:04:05:11 - 00:04:27:00 The process, if you can call that process, was that Matt Hancock, and it was usually Matt Hancock, signed at the bottom of the piece of paper. It was laid before Parliament at the same time, maybe a couple of hours later, but then it came into force immediately. And these weren't, you know, the usual kind of regulations, you see, sort of, you know, changing the, the traffic rules in a city center or something a bit more minor. 00:04:27:02 - 00:04:59:23 These were rules that were preventing people leaving their homes, hugging their relatives, going to work, the most restrictive you can possibly imagine. And they were being brought in through the negative procedure, which means they didn't have to be voted on for another 28 days under the Public Health Act. And the impacts of that was that by the time they were voted on, they'd already been superceded and it became a sort of dead process, because what you had was kind of sedimentary layers of new regulations being piled on one another over the weeks. 00:04:59:23 - 00:05:15:14 And by the time Parliament got round to debating one set of legislation, it had already been amended several times, perhaps. And so it was a kind of weirdly historical debate, if it happened at all, because this is a process in in effect, where the government legislates and Parliament kind of tries to catch up with it a bit later. 00:05:15:16 - 00:05:39:01 Exactly. And it put a huge amount of power into the hand of ministers. And in fact, it was only a very small group of ministers who were making decisions over these regulations. I think there was only 4 or 5 in the Covid Strategy Committee. I think it was Johnson. Cummings is not a minister. Michael Gove, Matt Hancock and Rishi Sunak with a sort of star chamber. 00:05:39:03 - 00:06:07:17 And I think one of the issues that arose for us and during the pandemic was it turned the democratic process into something that looked a lot more like non-democratic process. So East European rubber stamp kind of. Yeah. Or just any system of government where only a few men and it was all men make decisions for everybody without the usual pass through and the accountability going up and down, these sort of much more deliberative processes. 00:06:07:17 - 00:06:33:18 And of course, the justification for that is that you in an emergency, things have to be done very quickly. So it's not the same as an authoritarian government which takes power and never gives it back. It's much more in the in the sense of lending and lending their liberties as they used to during the Second World War. It was meant to be a temporary thing, but it created certain dynamics, which I think, as the pandemic wore on and there was a two years of this emergency lawmaking, created some serious problems. 00:06:33:24 - 00:06:53:17

And one of the problems during the pandemic was this confusion indeed made by ministers themselves, often between what was actually law and what was guidance. And I know, you know, various times during the pandemic, it was said that you were one of the few people in the country that actually knew what the rules were. This is something the commission obviously had to look at as well. 00:06:53:17 - 00:07:16:12 And do you want to outline where we've ended up? Yes. So there was this constant confusion and I don't think all of it accidental. I think in certain points there was, probably a deliberate policy of the guidance being stricter than the law. And not really making clear to people what the difference was. And I think, Ruth, you just referred to the rules, and that was certainly an expression that was used a lot. 00:07:16:12 - 00:07:35:03 I mean, one of the classic examples was that the law said you could go out of the house for exercise during the lockdowns. The guidance said at certain points, you should only go out once per day. And the ministers very much confused that. And and in fact, the law in Wales was different, where you could only go out once per day. 00:07:35:05 - 00:07:51:09 And in fact, a lot of police thought that the law was that you could only go out once a day. In fact, I was stopped by the police at one point and I was told, if I see you again on your bicycle today, we'll give you a fixed penalty notice. And I challenged the officer, you know, what do you think you're applying? 00:07:51:09 - 00:08:14:12 Because that's not the law. And he said, I'm, I'm talking about the full rules, the rules that the Prime Minister said in his speech. And so that confusion pervaded the whole country, you know, from the public to the politicians to the police, which is really quite serious because these were criminal offenses in play. And it was the case in lots of countries, actually, I think there was this confusion, but it was very much the case here. 00:08:14:14 - 00:08:35:11 And one of the recommendations we make is that the government should be very clear in the way it presents what the position is, what is law and what is guidance. And of course, that does raise a sort of a moral question about do you need to follow both or only the law? People are intelligent enough to make that decision for themselves. 00:08:35:11 - 00:09:00:12 The point is that they shouldn't be going out when there are such serious laws in place and such onerous laws, without being able to understand what they are legally allowed to do and what might lead to them having a criminal conviction, which is extremely serious. A lot of the actual fixed penalty notices had to be reviewed and rescinded, and they well, it's a bit of a complicated picture, but a lot of the convictions were overturned. 00:09:00:12 - 00:09:27:03 In fact, I think 100% of the convictions under the Coronavirus Act were overturned because the police were using the wrong law every single time. And I think it was about a quarter to a third of all of the prosecutions which were reviewed were discontinued. And, I mean, I was involved in a lot of cases involving fixed penalty notices, and we had almost 100% hit rate in the ones that we were challenging. 00:09:27:03 - 00:09:53:24 It was usually the bigger ones for thousands of pounds rather than 50 pounds. And so it was just a real atmosphere of confusion and a serious issue for the rule of law. And interestingly, not dissimilar to what was going on in the Second World War, which is the other time, I think it's very comparable time where there was a very regular changes to it using Statutory Instruments to things like the set prices of vegetables. 00:09:54:01 - 00:10:11:03 But obviously you couldn't look online then. So there were a lot of people being convicted, and it was raised in Parliament for offenses they didn't know existed. And I think that that in today's day and age, where you can put things on the internet immediately, there's no excuses at all for people not being able to be told what the law is, even if it's quite complicated. 00:10:11:03 - 00:10:38:08 At least they can find that. Whereas I think during the pandemic, because of the confusion between rules and guidance, because of the fact that the regulations weren't published in a consolidated form, you had to go from paragraph 2(b) has been amended to add the word ‘the’ between and and at. You know, you had to sort of figure out what that meant to be able to understand what the law is, which is completely unless... you're a barrister. Well forget barrister. 00:10:38:08 - 00:10:57:00 I mean, barristers have, you know, don't have time to do it unless you're an obsessive barrister like me who just decided that I wanted to find out exactly what these laws meant and was creating my own track changes version to publish, then it was impossible so that that's not good enough, and we've recommended a way of actually addressing that. 00:10:57:06 - 00:11:39:22

We actually said in a national emergency, when time for normal legislative process and scrutiny in consultation is short, the gravity of the situation essentially requires that parliamentary scrutiny is essentially temporarily sacrificed in exchange for broader oversight afterwards. Now, the problem we have, I think, during the pandemic, the commission looked at this in quite a lot of detail, is that there's different pieces of legislation on the statute books that could be used, and there was a debate about should the Civil Contingencies Act, for example, have been used, which is a bespoke piece of national emergency legislation which has provisions for recall of Parliament to consider regulations that requires regulations to be scrutinized more quickly, requires regulations 00:11:39:22 - 00:12:12:16 to be renewed more regularly. Whereas what actually the government used was the Public Health Act 1994. And as you say, that enables ministers to use the emergency, the urgency, procedure in that piece of legislation to do it at the stroke of a pen and to ask Parliament to scrutinize and approve it retrospectively within 28 days. We had a lot of debate in the commission about that, and we eventually chose that actually we shouldn't recommend the adoption of the civil contingency model, that we should amend the Public Health Act. 00:12:12:21 - 00:12:31:04

Do you want to explain that a little bit more detail? Why we concluded that in the end. There's a simple point that the Civil Contingencies Act says expressly that if there is another piece of legislation which can be used, it should be used. It's meant to be a a backstop rather than a last resort. It's got to be the only resort, in fact. 00:12:31:04 - 00:12:57:12 So it's got to be a disaster, which hasn't been anticipated in the sense that it hasn't been legislated for. Whereas the Public Health Act, very expressly, particularly following its amendments in 2008, which were at the behest of the World Health Organization on the request of the World Health Organization, the Public Health Act very plainly was meant for these kind of pandemics because it was amended after SARS and Ebola and the parliamentary debates were about SARS and Ebola. 00:12:57:12 - 00:13:25:21 But if you read the parliamentary debates and I take that expression, swish of a pen, from the parliamentary debates in the Lords, where, one of the Lords said, hold on a minute. Doesn't this give ministers huge power at the swish of a pen to do whatever they want? And the Labour minister at the time in the Lords responded saying, no, it's going to be very specific and narrow measures that we have in mind, like forcing factory workers in a poultry factory to wear protective gear and gives a couple of really quite narrow examples. 00:13:26:02 - 00:14:02:09 I think what nobody anticipated in that debate, and I don't think up to 2020, probably around the 20th of March, nobody anticipated it would be used for the kind of measures which were effectively not quite, but close to the detention of the population in their homes, you know, millions of people. So I think it stretched the made affirmative procedure to absolute breaking point. Once upon a time, made affirmative statutory instruments, where basically ministers Act and Parliament gets to approve or possibly reject the decision later on, were a pretty rare 00:14:02:09 - 00:14:24:18 beast that people used to talk about. I think it was the intoxicated shellfish order that went through sometime in the 90s about, I think, poisoned clams or something. And then suddenly we have this great slew of them coming through, restricting fundamentally people's lives. What you seem to be arguing is that this is a pretty blunt instrument to use, and perhaps something more precise and something more debated 00:14:24:23 - 00:14:47:04 needs to be in place. You've got to find the right balance because, like Ruth says, you need urgency. So you're not going to be able to have the gold standard parliamentary procedure. There's just no way, because of the speed at which the virus is moving through the country or whatever the crisis is, the public health crisis. But on the other hand, you cannot have this bizarre conclusion. 00:14:47:04 - 00:15:08:13 You can't have what happened during the pandemic, which is effectively Parliament is bypassed throughout, you know, to impose some very, very severe laws. And it's worth also distinguishing between some of the laws versus the others, because you might say, well, on the 26th of March, when lockdown regulations came in, there really wasn't time to put it through Parliament. 00:15:08:13 - 00:15:37:19 Although the coronavirus bill had gone through after a few days separate. But then a few months later, when the restrictions were changing but not radically changing, and in fact, certain policies like mask wearing, like hotel quarantine were being trailed off the papers weeks and even months before that came into effect. Then it became really quite a liberty for the government to take to use that procedure, because it was really just a convenience for them rather than being a necessity. 00:15:37:19 - 00:15:58:21 So if they've been talking about this for weeks, they couldn't argue that this must go through as a matter of urgency. Let's have the debate is your point. They did argue and they succeeded on the argument. And I think there were only about eight that went through with a prior parliamentary debate and draft regulations. So that seems to be something which needs to be changed for the next pandemic. 00:15:58:23 - 00:16:28:15 It was the best case of this was where the government wanted to introduce the mask wearing regulations, and they trailed it for weeks over the summer, and then they decided to introduce it, brought it in using this made affirmative procedure, which meant it came into effect before Parliament was able to consider it. And then when eventually it did, after the summer recess, gets to a debate and a delegated legislation committee shows how these things are done, a group of MPs and a committee looking at it, the public health minister, which was Nadine Dorries at that time. 00:16:28:17 - 00:16:45:03 She was asked explicitly what is the grounds for urgency? What is the emergency here? You've been talking about this for weeks. That's been in the media. Why couldn't you have introduced the draft regulations first? And she basically couldn't explain what the grounds for urgency were. And she said, I'll have to get basically in terms I'll have to get back to the department. 00:16:45:08 - 00:17:09:16

So that was one of the things the commission looked at is how long does the concept of an emergency last? Because the government stretched it and stretched it and stretched it over a two year period. And naturally, what the commission concluded was we need a trigger for what constitutes an urgent health situation that then acts as a sort of a gateway to the use of these urgent powers. 00:17:09:18 - 00:17:38:23 We want a few more constraints on how ministers can use them, and they have to get a renewal of this concept of an urgent health situation, an urgent health declaration to continue to use powers in the future. Because when we took evidence in the commission, that was one of the big concerns that quite a number of people had, including parliamentarians, that if there's no constraint on the use of the powers, ministers can just effectively leave them there and continue to use them in situations in which is just not justified. 00:17:39:00 - 00:18:01:10 So in effect, there would be a kind of declaration of a state of health emergency or something of that nature before these powers could start being invoked by ministers. That's the basic idea behind this. Yeah. And that would lapse after a certain period. It would require evidence or an opinion from the chief medical officer, and that opinion from the chief medical officer would have to be provided to Parliament. 00:18:01:10 - 00:18:22:11 So there'd be a parliamentary debate. Yes, there would be a parliamentary debate for it to be approved. And so that would be the authority that would then be taken and used by ministers to tell us all to stay at home, or tell us all to wear masks or to shut the schools or whatever it was. Yeah. But then following that, there would be a stricter regime of scrutiny. 00:18:22:16 - 00:18:57:24 So there's a few different measures that we recommended. We don't recommend that the regulations can be amended by Parliament, which is actually available in the Civil Contingencies Act. So we didn't go that far because I think we thought it would cause too much trouble and make things too difficult. But what we do recommend is that the period for the regulations to be approved would be reduced from 28 days to 14, and that there would be a special committee set up, which would be cross-party and which would scrutinize the regulations, as happened in Scotland, but didn't happen in other parts of the UK. 00:18:58:02 - 00:19:21:07 Yeah. I mean, essentially this this concept of having a joint committee, both houses if they wish, or it could be in each house, but a dedicated public health emergency committee to take a cross-departmental look at things and to be able to respond quite quickly to the issues as they arise. So at Westminster, during the pandemic, each departmental select committee looked in that particular area. 00:19:21:07 - 00:19:40:24 So Department of Health committee looked at health regulations, you know, transport theirs. But what seemed to be missing was a sort of coherent, holistic approach to scrutiny and to consider things in the round and to consider the knock on effects of regulations in one area compared to another. And that's something that's probably better done in a committee than attempting to do it at a question time 00:19:41:01 - 00:19:56:05 or a statement on the floor of the House of Commons. Yes. And convening a smaller group of MPs quite quickly is easier than trying to get the entire house together. And obviously there are all sorts of questions about what type of health emergency we'd face. You know, the concept of a parliament is that it assembles, that it gathers together. 00:19:56:07 - 00:20:28:14 And obviously during Covid, that wasn't possible when we had to adapt to virtual proceedings. We don't know what the health emergency would look like next time and whether we'd be back in the same situation. But being able to convene a small group of MPs and peers who keep a watching eye on this and scrutinize it across departments we thought was more sensible, looking at what had been done in Scotland, looking at what had been done internationally, and importantly, this concept of an urgent health situation declaration would be the trigger for the setting up of the committee. 00:20:28:14 - 00:21:03:00 It wouldn't be for government to decide whether it should be set up. It should be automatic that once that declaration comes into force, then that committee has to be established. So I don't know how much difference would that make? I think it would make a difference. I know from my own experience that I was special adviser to the Joint Committee on Human Rights, the Covid 19 inquiry that it did for a year, and we were producing pretty live scrutiny, actually, of the legislation from a human rights perspective and raising a lot of the issues which now form part of this report, but also will form part of the Covid 19 inquiry reports. 00:21:03:06 - 00:21:23:24 What we were raising about the clarity of legislation, which is something we've raised, we were raising about protest rights, about the rights of people to see their partners, which was coming up. And we were part of a ecosystem of a number of committees, the Health Committee, the Home Affairs Committee, the Secondary Legislation Committee that were doing a huge amount of scrutiny work. 00:21:24:01 - 00:21:46:15 It was valuable, but it wasn't joined up. I don't think the government was particularly paying attention, was my impression. They sort of came back with responses, but it was all ex post facto. And I think that that work should be consolidated into a single committee. That would also, I think, get public interest and allow these issues to be aired in a similar way to SAGE. 00:21:46:17 - 00:22:14:03 You know, SAGE is a sort of obscure committee that wasn't heard publicly. It just they produced minutes, but it became hugely significant because it was quite obviously the only committee that the government decided that it had to listen to and was constantly saying, you know, justifying its actions that SAGE said this, SAGE said that. And I think that demonstrates that the importance that these committees can have for scrutiny purposes. We should just explain SAGE is not a parliamentary committee. 00:22:14:07 - 00:22:38:01 It was a gathering of the scientists, the health experts and so on. And so should an incoming government, because as we're talking, there's a general election underway, should an incoming government, as a matter of urgency, pick up these recommendations and stick them into a passing piece of health legislation so that these changes are on the books? Or is this stuff still controversial enough that an incoming government might think, we probably want our own ideas. 00:22:38:03 - 00:23:02:23 We're not proposing anything particularly radical. We're not saying you've got to get rid of the Public Health Act or the Civil Contingencies Act. What we're proposing is a series of relative limited, but actually really significant changes that I don't think should be controversial. And I think we should have cross-party support because they reflect issues that were raised by people in both parties throughout the pandemic. 00:23:03:00 - 00:23:28:17 And I think it would be very prudent to get these changes done as quickly as possible so that when the next pandemic or the next public health emergency arises, and it could be at any time, this isn't all just picked off a shelf and lumped together in with other changes. Now, one of the proposals we've made is that actually the pandemic showed the importance of the role of the legislature in an emergency. 00:23:28:19 - 00:23:50:14 And actually Parliament and indeed the devolved legislatures are not part of or have not historically been part of emergency planning by the Cabinet Office. So one of the recommendations we've got is that they should be in future in order to sort of get a better approach to how you manage the legislative and democratic accountability aspects of an emergency. 00:23:50:16 - 00:24:10:21 And I think that's why it's important that the next government does pick it up, because it's going to have to obviously respond to the Covid inquiry. They’re not looking at these aspects of what happened. So it's important that that's part of the discussion. But we expect the next government to have to respond to the findings of the Covid inquiry, but they're going to have to get on with emergency planning themselves. 00:24:10:21 - 00:24:37:18 They're going to have to review what the Cabinet Office’s emergency plans are and be thinking about what happens if this happens on our watch next time. We need to be prepared. So there's that aspect of it. But there's also, of course, Parliament itself. We're going to have a whole set of select committees with new members, new chairs. And I would hope that the Public Administration committee in the House of Commons in particular, possibly the Constitution Committee in the House of Lords as well, would want to revisit this. 00:24:37:21 - 00:25:01:24 Select committees in the last Parliament have looked at these issues. They've made their own recommendations. Ours are not out with those. You know, they're fairly reasonably consistent. And I'd hope that those committees would want to revisit, to keep the pressure on the government to ensure that emergency planning is done for the future effectively.

Do you, Adam, have any sense of what politicians across the Conservative and the Labour Parties in particular, think of the recommendations you put out. 00:25:02:01 - 00:25:23:22 Well, Matt Hancock, who was at the launch event the other night. I know he's no longer a politician, but he was the person who signed all those, nearly all of those, regulations into law. I think he thought they were very sensible. And in fact, he said he thought if these changes had been in place at the time, it would have helped him in certain ways in making sure that the regulations were fit for purpose and were well developed. 00:25:23:24 - 00:25:43:13 So I don't know what either political party would make of these recommendations. It's a bit early to say, but I don't think any of them are particularly controversial in a political sense. I suppose the key question is, a Labour government at least looks likely at the moment, what the Labour Party thinks of them. No, no smoke signals from them. 00:25:43:17 - 00:26:04:20 No, not unless Ruth seen smoke signals. No, I haven't seen any smoke signals. I don't think it's necessarily uppermost in their minds at the moment, but whoever is going to be in charge of the Cabinet Office, once they get in there this is going to be one of the things I suspect that's in the the dossier that will be handed over to the new minister on day one by the civil service, and they're going to have to grapple with it. 00:26:04:20 - 00:26:21:23 So they'll have to get their heads round it fairly quickly. So, potentially over to you Wes Streeting as a Labour health secretary, Pat McFadden as a Labour Cabinet Office minister. Adam Wagner, thanks very much indeed for joining us on the pod. Thank you very much for having me. Well, Mark that was a great conversation with Adam. 00:26:22:00 - 00:26:42:00 And that's really all we've got time for. But just before we go, I think we should probably update listeners on what we're planning to do now that the general election campaign is underway. With no Parliament to talk about, we won't be on the air as often, but we are planning to take a look at the party manifestos and do a preview of Parliament's preparations to welcome what promises to be a really big new intake of MPs. 00:26:42:02 - 00:27:00:11 And I think as soon as the dust has settled from polling day, we'll be back for a special episode, looking at the results and the shape of the new parliament. So from Ruth and I for the moment, thanks for listening. Stay tuned and we'll be back soon. See you soon. 00:27:00:13 - 00:27:20:12 Well, that's all from us for this week's episode of Parliament Matters. Please hit the Follow or Subscribe button in your podcast app to get the next episode as soon as it lands, and help us to make the podcast better by leaving a rating or review on Apple or Spotify and sharing your feedback. Our producer tells us it's important for the algorithm to give the show a boost. Tell us more about the algorithm. 00:27:20:14 - 00:27:43:23 What do I know about algorithms? I write my scripts with a quill pen on vellum and then send it in by carrier pigeon. Well, before we go, a quick reminder also that you can send us your questions on all things Parliament by visiting hansardsociety.org.uk/pmuq. We'll be discussing them in future episodes, including our special Urgent Questions editions dedicated to what you want to know about Parliament. 00:27:44:02 - 00:28:01:17 And you can find us across social media @HansardSociety to get more content related to the show and the wider work of the Hansard Society. 00:28:03:22 - 00:28:20:01 Parliament Matters is produced by the Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information, visit hansardsociety.org.uk/pm or find us on social media @HansardSociety.