PARLIAMENTARY DEBATE
Public Health (Control of Disease) Act 1984 (Amendment) Bill - 26 April 2024 (Commons/Commons Chamber)

I beg to move, That the Bill be now read a Second time.

This is the Bill’s first outing in debate, because although it was presented in the 2022 Session, unfortunately the House was unable to debate it. It relates directly to the beginning of the pandemic and the emergency measures that were taken by the Government and Parliament in implementing the Coronavirus Act 2020. At the time, a lot of concern was expressed about insufficient scope for parliamentary scrutiny under the Public Health (Control of Disease) Act 1984, and how the level of scrutiny available under that Act compared unfavourably to that available under the Civil Contingencies Act 2004. Since that time, a number of academic and other articles have been written, and speeches given, in which the concern has been expressed that the Government used the wrong tool to implement restrictions on individual liberty during that pandemic, resulting in this House having an insufficient role in scrutinising that important legislation.

This issue was raised, very ably, by my hon. Friend the Member for Windsor (Adam Afriyie) during the original debate on the Bill that became the Coronavirus Act 2020. He said:

“the whole purpose of the 30-day provision in the Civil Contingencies Act was for the Executive to be accountable to Parliament.”

The Leader of the House, however, responded to a point that he had made earlier by saying:

“we cannot use the Civil Contingencies Act…If we have time to bring forward legislation, it is proper that we do that, and anything we did under the powers of the 2004 Act would apply for only 30 days.”—[Official Report, 23 March 2023; Vol. 674, c. 132.]

Well, that is exactly what the Civil Contingencies Act 2004 is there to do. It was implemented to deal with emergencies even graver than that caused by the coronavirus pandemic.

The Civil Contingencies Act was the subject of detailed discussion before its enactment. Section 28 is entitled

“ Parliamentary scrutiny: prorogation and adjournment”,

while section 27 provides for “Parliamentary scrutiny” in other circumstances, stating that

“Where emergency regulations are made”

under the Act,

“a senior Minister of the Crown shall as soon as is reasonably practicable lay the regulations before Parliament, and…the regulations shall lapse at the end of the period of seven days beginning with the date of laying unless during that period each House of Parliament passes a resolution approving them… If each House of Parliament passes a resolution that emergency regulations shall cease to have effect, the regulations shall cease to have effect…at such time, after the passing of the resolutions, as may be specified in them, or…no time is specified in the resolutions, at the beginning of the day after that on which the resolutions are passed… If each House of Parliament passes a resolution that emergency regulations shall have effect with a specified amendment, the regulations shall have effect as amended”.

The Civil Contingencies Act therefore enables the regulations introduced under its provisions to be amended, unlike the Public Health (Control of Disease) Act 1984. The Government took advantage of that during the pandemic, and I am trying to put it right by including in my Bill provisions to ensure that there is scrutiny so that there will no longer be a perverse incentive for the Government, when faced with a pandemic or similar emergency, to resort to the use of the 1984 Act rather than the Civil Contingencies Act, on the basis that it would suit them to use the former rather than the latter because it would be subject to less scrutiny.

Clause 1 of my Bill provides that section 45D of the 1984 Act should be amended so that

“the appropriate Minister must lay before Parliament a statement that the restriction or requirement is proportionate under subsection (1)”,

and that

“In the case of English regulations, that proportionality must be demonstrated by a regulatory impact assessment that has been laid before Parliament.”

The importance of such a regulatory impact assessment cannot be overstated. We now look back on that period three years ago, and consider the consequences that flowed from the over-zealous restrictions that were introduced by the Government. Almost every day we hear of the adverse consequences for a whole cohort of young people who were excluded from school for extensive periods. As a result, not only has their education been damaged but their health, welfare and, particularly, their mental health. In my view, that is a direct consequence of this House not having had the opportunity to consider the costs and benefits of introducing such draconian restrictions on people’s ability to participate in their school education.

A similar point can be made about businesses being able to carry on what they were doing normally. I visited a garden centre a few weeks ago. In the height of the pandemic it was verboten that people could visit garden centres. For a time people were not even allowed to go to the refuse disposal points to get rid of their rubbish. They were not allowed to venture out and meet their loved ones, even in open spaces. As a result, a whole mass of people lost their loved ones without really being able to say goodbye to them, because they were incarcerated in care homes. We must never allow such a situation to be repeated in another health or other type of emergency without the proper scrutiny.

When one looks back over the course of this Parliament, it is possible to say that if we had been able to scrutinise the social distancing regulations to a greater extent, the Prime Minister in office at the time of the pandemic would still be in office today. The regulations and restrictions of which he fell foul would not have been in place, because somebody would have asked some sensible questions. The Government would have been persuaded that the workplace regulations should have enabled people working during the emergency to try to deliver benefits for the public to be allowed have a cup of tea or a bun together without falling foul of the law.

The use of the Public Health (Control of Disease) Act 1984 may well have had the direct consequence—unintentionally, obviously—of depriving the former Prime Minister of his post. When the history books come to be written, these restrictions may be seen as a much more significant decision by the Government, though as the head of the Government, the Prime Minister himself at that time decided to use the 1984 Act rather than the 2004 Act regulations.

My Bill would ensure that we not only have proper parliamentary scrutiny of the regulations under section 45D of the 1984 Act, but that under section 45Q we introduce a provision that

“before such regulations may be made, a draft of the statutory instrument containing them shall be laid before each House of Parliament for a period of not less than twenty days on which that House has sat, and, if either House before the expiration of that period presents an address to Her Majesty against the draft or any part thereof, no further proceedings shall be taken thereon (but without prejudice to the making of a new draft statutory instrument) and that part of the draft shall not have effect unless both Houses by resolution approve it, or, if any modifications in that part are agreed to by both Houses, except as so modified.”

The consequence of that would be that there would be no incentive for a Government to introduce restrictions on freedom under the 1984 Act; instead, they would use the Civil Contingencies Act, which was of course set up for that very purpose.

I referred earlier to the public commentary about this issue. Most significantly perhaps, the noble Lord Sumption gave a lecture in which he expressed doubt about the legal basis for the draconian measures and argued strongly that we need proper parliamentary scrutiny. Another commentator, Tom Hickman KC, made the case not for using the 2004 Act but for having bespoke legislation to deal with such situations in the future.

The public health regulations that came into effect on 26 March 2020 set out criminal laws that required each person or household to remain in their homes until further notice. There were very narrow grounds on which people were able to leave their homes. The guidance that the Government issued was, as we eventually discovered through the courts, often over-claimed and overused by the enforcement authorities. We also found that those regulations essentially set up a system of false imprisonment, completely in breach of all principles of English common law. There were tremendous restrictions on people’s ability to go out and earn a living, and the reasonable excuses available to them to avoid the lockdown requirements were strictly limited.

Let us not forget the consequences for individual liberty, and for a whole generation of young and old people, who were particularly affected by these draconian laws, brought in by the Government under the wrong piece of legislation and insufficiently scrutinised by this House. Let that never happen again. Let us hope that Baroness Hallett, when she looks at this issue in the public inquiry, reaches the conclusion that the Government did indeed go too far in locking down, restricting freedom and preventing people from accessing education or seeing their loved ones in care homes. That inquiry will reach a conclusion in perhaps five or 10 years’ time—who knows?—but I hope that, if the Government do not support my Bill today, a future Government will be persuaded by Baroness Hallett’s report to do exactly the same thing and ensure the Public Health (Control of Disease) Act 1984 contains proper scrutiny provisions as safeguards.

The shadow Minister has indicated that she would like to make a very short contribution.

The hon. Member for Christchurch (Sir Christopher Chope) was a consistent campaigner against lockdowns during the pandemic and has continued to be since. The UK was badly unprepared. NHS waiting lists were at record levels even before the pandemic hit. We had staff shortages of 100,000 in our health service and 112,000 vacancies in social care. The Government’s handling of public health measures was chaotic as we jumped in and out of lockdowns, and the best scientific advice was frequently ignored.

The primary duty of any Government is to keep the public safe and to make sure we are prepared for national emergencies like the one we faced in 2020, but there are a few problems with the approach highlighted today. The Bill would require regulatory impact assessments to be conducted before any regulations could come into effect in England. Any regulations would have to be laid for at least 20 days before they could pass into statute. We know that in pandemics sometimes Governments have to move quickly, and the requirement to wait at least 20 days before regulations came into effect seems a potentially dangerous move. To my mind, the question that the hon. Member raises is more one of whether the Government are up to the task of dealing with another public health emergency in a way that ensures that democratic accountability and public confidence are maintained. If decisions are taken transparently and if everyone is seen to be following the rules, we stand a much better chance of maintaining public confidence and making better decisions.

I do not agree that this Bill, which risks tying the Government’s hands behind their back during a national emergency, is the way to do it. I would like to see what the covid-19 inquiry says about how that was handled and how we as a Parliament should deal with these issues in future.

I am sure that the hon. Member for Birmingham, Edgbaston (Preet Kaur Gill) will want to welcome the news that in the past 12 months to March 2024, 63 million more GP appointments were delivered by our superb GPs and practice staff than in March 2019. That is more than 1.4 million extra per working day. I am sure she would be delighted to praise our GPs and health professionals for that.

I am grateful to my hon. Friend the Member for Christchurch (Sir Christopher Chope) for providing the House with an opportunity to debate an important area of public policy. I am aware of his ongoing interest in this area. We have discussed the pandemic on many occasions in this place, and no doubt we will do so again. The particular issue his Bill raises is parliamentary scrutiny of emergency legislation made under the Public Health (Control of Disease) Act 1984. That is also a topic we have debated before, and a matter about which he has tabled two identical private Members’ Bills in previous parliamentary Sessions.

We take the parliamentary scrutiny of new legislation and of the measures that the Government took to respond to the pandemic extremely seriously. However, such scrutiny must be balanced against the need to act quickly and decisively to respond to a health emergency and to protect the public. During the covid-19 pandemic, the Government had to move quickly to introduce new laws and guidance to protect public health and maintain access to essential services. My hon. Friend will be aware that during the covid-19 pandemic, as decisions were made at pace, Ministers from the Department made regular statements to the House and invited scrutiny on policy—indeed, my hon. Friend spoke on many of those occasions himself—as well as regular calls for colleagues across the House so that they could ask questions and seek solutions for members of the public who were looking for answers. Moreover, the Government have responded to numerous parliamentary inquiries and Committee reports and responded on a range of issues, including legislative mechanisms employed during the pandemic response.

Turning to the private Member’s Bill before the House, my hon. Friend seeks to amend section 45D of the Public Health (Control of Disease) Act 1984, which imposes certain restrictions on the power to make regulations under section 45C. Section 45C relates to the domestic regulations that can be made to counter the spread of infectious disease.

Part 2A of the 1984 Act, under which those relevant sections sit, was added following the global severe acute respiratory syndrome outbreak in 2008. Parliament gave the Government broad powers to deal with precisely the same types of threats as those we faced during the covid-19 pandemic. Parliament empowered Ministers to use regulations to prevent, protect against, control or provide a public health response to incidents, the spread of infection or contamination. Regulations made under section 45C that impose restrictions and requirements are subject to a requirement that there must be a serious and imminent threat to public health. That test was certainly met during the covid-19 pandemic.

The making of regulations is already subject to a test of proportionality, and where the regulations confer powers on others to impose restrictions and requirements, those persons must consider that their decisions are proportionate. So I do not support the proposal to make regulations under section 45C subject to additional—