Six months after the enactment of the Coronavirus Act 2020, lockdown regulations continue to be made under the emergency procedure. This means that they are made and come into force straight away, with the only parliamentary requirement that they be approved within 28 days.
The legal justification is that, by reason of urgency, it is necessary to make them without prior parliamentary approval. It is unclear whether, six months in, and given our greater knowledge about the virus and the likely effect of restrictions and relaxations, that this justification still applies.
Prior parliamentary approval helps with many things. It can correct mistakes before they are made. It can help to disseminate the content of these rules more widely. It can provide a proper forum for debate on the delicate balance between public health, civil liberties and the economy. And it can give greater democratic legitimacy to the rules.
Furthermore, legislation needs to be accessible to those who are obliged to follow it. This requires publication of lockdown regulations well in advance of them coming into force.
The proposed "Brady amendment" seeks to address these concerns. We support that amendment and recommend either that the Government accept it, or give undertakings that the underlying purpose behind it is to be respected in the making of lockdown regulations.
The Rule of Law requires proper law-making procedures to be followed. The longer these emergency procedures are used, the less Rule of Law compliant they are.