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The Independent Commission on UK Public Health Emergency Powers publishes its final report on UK Public Health Emergency Powers

The Independent Commission on UK Public Health Emergency Powers has published its final report after over 18 months of work. 

The Commission is an independent body established on 13th October 2022 with the goal of informing both the UK and Scottish Covid-19 Inquiries and government planning for future public health emergencies. Since its launch, the Commission has reviewed emergency public health laws and parliamentary procedures in the four UK nations. It has considered how far these laws and procedures could be enhanced so as to better protect the rule of law and promote accountability, transparency and parliamentary control of executive action. 

In its report, the Commission’s recommendations focus on the design of legislation (including the protection of human rights), the enhancement of parliamentary procedures and scrutiny, improvement of legal certainty and clarity, and the appropriateness of action in enforcing emergency public health laws. 

Doughty Street’s Adam Wagner is one of twelve Commissioners of the Commission, comprising leading policy experts, practitioners, parliamentarians and academics working in the field. Commission Chair and former member of the Court of Appeal of England and Wales, The Rt. Hon. Sir Jack Beatson FBA explained,

“After 15 months intensive work on the way emergency public health legislation was made, used and enforced during the COVID-19 pandemic, the Commission makes 44 recommendations to enable the four governments in the UK to better protect the rule of law and good governance in future public health emergencies, while acting quickly to secure timely and effective public health outcomes.

Our recommendations focus on the design of legislation (including the protection of human rights), the enhancement of parliamentary procedures, improvement of legal certainty, and the appropriateness of enforcement action. They are based on our research and on evidence from those with experience and expertise of law making, public health, policing, and human rights in all parts of the UK and in ten other countries. I very much hope that they will inform the UK and Scottish COVID-19 inquiries and government planning for future emergencies. The design of public health emergency frameworks is important because such frameworks are the foundation for wide scale interventions of the type imposed during the COVID-19 pandemic, which had such a great impact on everyone in the UK.” 

Findings of the Final Report

The design of legislation 

The Commission rejects suggestions that an entirely new public health Act might be introduced, and that the Civil Contingencies Act 2004 would generally be a suitable legislative tool for responding to public health emergencies. Instead, it concludes that the powers available to ministers in England and Wales in the Public Health (Control of Disease) Act 1984, and equivalent powers available to Scottish ministers in the Public Health (Scotland) Act 2008, provide a useful starting point. Nonetheless, the Commission has significant concerns around the extent to which the existing Public Health Act framework provides for appropriate parliamentary scrutiny and oversight of government law-making, and safeguards human rights and equality considerations in an emergency. The recommendations it makes to address these concerns, include:

  • Restricting use of urgent government law-making without prior parliamentary scrutiny to circumstances when a declaration of an “urgent health situation” is in effect; 

  • Ensuring that parliamentarians have greater access to advice from the Chief Medical Officer when scrutinising urgent government law-making;

  • Requiring public health regulations made on an urgent basis without prior parliamentary scrutiny to expire after two months, and other public health regulations to expire after six months;

  • Increasing the information the legislature receives on the impact of public health regulations;

  • Requiring ministers to have regard to advice produced by National Human Rights Institutions in their jurisdiction.

The report recognises that emergency-responsive statutes, such as the Coronavirus Act 2020, the Coronavirus (Scotland) Act 2020, and the Coronavirus (Scotland) (No.2) Act 2020 may need to be enacted. It notes that parliamentary scrutiny may well be limited, especially when legislation is fast-tracked, and discusses how parliamentary oversight of emergency-responsive primary legislation might be enhanced. The enhancements include improved use of ‘sunset clauses’, an enhanced requirement for ministers to report to the legislature regularly on the emergency measures; stakeholder consultation and engagement on measures planned in advance of an emergency; and publication of any draft emergency-responsive Bill designed in anticipation of a future public health threat.

Parliamentary procedures

The report explores how parliamentary procedures can best be adapted so that legislatures can provide appropriate oversight of an emergency response. It focuses on three topics: (1) making parliamentary committees more effective by appointing a specialist committee to oversee the response to a public health emergency; (2) ensuring that adaptations to parliamentary procedure are made in consultation with members of the legislature from across political parties, and are not abandoned too swiftly following the end of an emergency period; and (3) improving parliamentary involvement in government contingency planning, including inter-parliamentary dialogue and cooperation.

Legal certainty

The report focuses on three main areas of legal uncertainty that arose during the Covid-19 pandemic: (1) uncertainty caused by the manner of making and frequently amending large numbers of public health regulations; (2) uncertainty caused by the way legal requirements and public-health advice were communicated by government, often without clearly distinguishing between the two; and (3) uncertainty resulting from differences between the responses to Covid-19 in the four UK nations.  It suggests ways of ameliorating these problems, including governments making fewer regulations, consolidating regulations, publishing regulations at least two days before they come into force, and building a traffic light, or alert level, system of communication into contingency planning for future public health emergencies

Enforcement 

The report reviews whether public health restrictions should be underpinned by criminal sanctions as a matter of principle. It then considers enforcement mechanisms used during the Covid-19 pandemic. The Commission is particularly concerned, from the perspective of the rule of law, about the way in which fixed penalty notices worked as a tool for enforcing coronavirus restrictions. Its concerns include: (1) the complexity of offences for which fixed penalty notices were issued, (2) the high monetary penalty for some offences, and (3) the absence of a formal appeal mechanism. The Commission is also concerned about the proportionality of enforcement of restrictions on people’s protest rights. Its recommendations include:

  • Whether a formal warning system could be a first-stage alternative to the use of fixed penalty notices;

  • Ensuring that fixed penalty notices are ordinarily used only where the level of penalty is low, and are not used to impose penalties that exceed a few hundred pounds;

  • Facilitating a formal mechanism for individuals who believe they have been wrongly issued with a fixed penalty notice for breaching public health restrictions to make representations to the issuing police force;

  • Ensuring that police forces are given training on the enforcement of public health restrictions, are clearly informed of the wider objectives underpinning public health restrictions, and are given sufficient data to help them assess public health risks in their local area.

The report was launched at the Institute for Government in London yesterday and is available to download here.