What can businesses learn from understanding how the lockdown regulations are put together?
Published on 11th May 2020
In this article, Osborne Clarke's John Cleverly – a former government lawyer and a member of our Regulatory team – looks at how the UK government prepared the regulations which enforce the lockdown restrictions, and what businesses can learn from understanding how this type of emergency legislation is put together by government.
A long history of emergency orders
The government's powers to introduce drastic rules at short notice has a long pedigree. In 1579, the King's Privy Council ordered the sick, and their families, to be placed under house arrest for six weeks to try to prevent the spread of the plague.
But these days, our elected legislature is sovereign – isn't it? Broadly, yes, unless Parliament decides to give that sovereignty away within a pre-determined scope of its choosing.
How the government has the power to suspend fundamental rights
It is the Public Health (Control of Disease) Act 1984 – surprisingly, not the Coronavirus Act 2020 – which allowed the government to make the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (and subsequent amending regulations) without a draft first having been laid before Parliament.
These coronavirus regulations contain the famous Regulation 6, requiring people to stay at home unless they had a 'reasonable excuse' to leave.
The regulations were subject to retrospective "affirmative" parliamentary scrutiny, which only occurred several weeks later on Monday 4 May.
But, in fact, the parliamentary scrutiny for these powers already happened some years ago when the Bill inserting the powers into the 1984 Act was debated over a period of eight months back in 2007-2008.
With the passing of that Bill and the amendment of 1984 Act, Parliament gave government the power to suspend fundamental rights to liberty and property about as quickly as they could write them down and give them to a minister to sign.
Other such powers exist, the most prominent being under the Civil Contingencies Act 2004 (mentioned in hushed tones in the Sky drama "COBRA"), which similarly allow regulations significantly curtailing rights to be made by a minister bypassing Parliament where an event threatens serious damage to human welfare or the environment, including terrorism.
How government regulations are usually put together
Regulations normally take nine to 12 months (often longer) to produce from early policy inception, which can involve discussions with lawyers in order to consider the existing law and what is achievable. Policy officials will then work to secure a slot in the legislative timetable, usually six to 12 months in advance.
Industry or other public consultations are generally then required, either under a specific statutory requirement, or under common law rules, which require advance consultation of those affected in accordance with the Cabinet Office consultation principles.
How businesses can influence regulations
Usually drafting occurs alongside such consultation and, where a specific industry is likely to be affected, particular groups can be informally consulted during that process – so there are usually opportunities to feed into the legislative process at a formative stage. Given that the coronavirus regulations introduce offences, they would normally have had to go through the "MOJ gateway" and gain approval from officials there for the drafting.
Drafts then go through two or three-weekly "second and third pair of eyes checks" of varying length depending on complexity. This is usually a very thorough and formal exercise including checks that are often of a very technical nature, such as reviewing footnotes in detail to ensure, for example, that every previous amendment to a provision being referenced has been captured. The final version is then vetted by Parliament's Joint Committee on Statutory Instruments, who flag any deficiencies. These checks can take time – which was not an option for the government when putting together the coronavirus regulations.
Can a dog be carried?
While there is no set timetable internally for drafting regulations, it usually takes time to translate policy into law.
In a training session on creating secondary legislation, I once used the example of "dogs must be carried" from the movie "Paddington 2", which is a classic example of the challenges of fit-for-purpose rule-making.
The session would include a brainstorm on how that rule should have been written (for example, "where a person brings a small dog into the underground, that dog must be carried"). Questions would arise such as: What if the dog is too big? Should the rules make clear to which dogs it applies? Would it not be necessary to consult dog-owner associations and animal charities to seek their views? We also need an exemption for guide dogs to make the rules clear to those required to enforce them, and so on.
The follow-up amendment to the coronavirus regulations is a classic illustration of the need fully to bottom out such questions in advance. No doubt the result of excess (although laudable) haste, the Regulation 6 offence had to be changed to prevent a person "leaving or being outside of" their house without reasonable excuse, instead of simply "leaving" their house – otherwise you could dodge the rules by never being caught in the act of actually walking out of the front door.
Often there is a gulf between how policy officials see the aims of legislation and what can actually be achieved. One of the primary tensions within secondary legislation is that you are operating only within the scope of what Parliament has delegated to the government to implement, so you are restricted by the enabling powers.
Lawyers in government will often be tested by ministers and policy officials as to what can be legally achieved within the scope of the enabling powers. If there is a risk that something may go beyond that scope, but there is an arguable case that it is within scope, lawyers will advise on the likelihood of challenge and the likelihood of any challenge succeeding.
Rushing through the coronavirus regulations
For the coronavirus regulations, nearly all of the formal stages were skipped. The speed of the drafting represents a Herculean task on the part of the government lawyers involved. The fact that subsequent tidying up amendments were required is not surprising at all, given how technical and time-consuming the usual review stages are.
The regulations actually became law during recess (on 26 March), which had started early due to the coronavirus pandemic – so there was in fact no Parliament sitting to scrutinise them anyway – Parliament would have had to have been recalled at short notice, having first come up with solutions to comply with the distancing rules, thereby incurring further delays.
The virtues of an unwritten constitution?
The speeding-up of collective agreement processes within government, and of parliamentary procedures once it passed over to scrutiny by the legislature, was arguably in part achievable by virtue of having no written constitution. Maintenance of the conventional procedural stages underpins much of the settlement between the government and Parliament and enables it to work. Where it breaks down through lack of agreement (as we saw with prorogation), things do not end well and can grind to a halt.
However, where there is broad consensus, the flexibility of our constitutional system enables things to be done in record time and crises – such as the pandemic – to be met with some sort of quick response.
The government's strong majority also played a part in securing retrospective parliamentary approval for the various measures – it may have been a different story if this had happened six to 12 months ago under Theresa May.
In monitoring changes made via primary legislation, a very close eye is kept on what is delegated to the executive to make in secondary legislation, statutory guidance, or codes of practice. Any Bill containing significant delegations is likely to be subject to thorough parliamentary scrutiny and prior consultation, and it is during these stages that the potential scope of executive rule-making will become clear – and lobbying and influencing opportunities for businesses may arise.