Parliament, the Pandemic, and Constitutional Principle in the United Kingdom: A Study of the Coronavirus Act 2020
| Published date | 01 November 2022 |
| Author | Pablo Grez Hidalgo,Fiona Londras,Daniella Lock |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12753 |
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Modern Law Review
DOI:10.1111/1468-2230.12753
Parliament, the Pandemic, and Constitutional Principle
in the United Kingdom: A Study of the Coronavirus
Act 2020
Pablo Grez Hidalgo,∗Fiona de Londras†
and Daniella Lock‡
Constitutions come under pressure during emergencies and, as is increasinglyclear, during pan-
demics. Taking the legislative and post-legislative debates in Westminster and the Devolved
Legislatures on the Coronavirus Act 2020 (CVA) as its focus,this paper explores the robustness
of parliamentary accountability during the pandemic, and nds it lacking. It suggests that this
is attributable not to the situation of emergency per se, but to (a) executive decisions that have
limited Parliament’s capacity to scrutinise; (b) MPs’ f ailure to maximise the opportunities for
scrutiny that did exist; and (c) the limited nature of Legislative Consent Motions (LCMs) as a
mode of holding the central government to account. While at rst glance the CVA appears to
conrm the view that in emergencies law empowers the executive and reduces its accountability,
rendering legal constraints near-futile, our analysis suggests that this ought to be understood as
a product, to a signicant extent,of constitutional actors’ mindset vis-à-vis accountability.
INTRODUCTION
Constitutions come under pressure during emergencies. That is true in the
United Kingdom (UK) as it is elsewhere. While there is plentiful work on
constitutional strain relating to war, counter-terrorism, national secur ity, and
nancial crises,1the last two years have drawn scholars’ attention to the same
∗Lecturer in Public Law, Strathclyde Law School.
†Professor of Global Legal Studies, Birmingham Law School.
‡Postdoctoral Fellow, University of Oxford.This paper is an outcome of the COVID-19 Review
Observatory, funded by the AHRC through the UKRI’s Covid-19 Agile Funding Call (Award
AH/V011561/1). Professsor de Londras also acknowledges the support of the Leverhulme Trust
through the Philip Leverhulme Prize.
1 See for example C. Campbell, Emergency Law in Ireland 1918-1925 (Oxford: Clarendon Press,
1994); L. Donohue,Counter-Terrorist Law and Emergency Powers in the United Kingdom 1922-2000
(Dublin: Irish Academic Press, 2001); J. Sim and P. Thomas, ‘The Prevention of Terrorism Act:
Normalising the Politics of Repression’ (1983) 10 Journal of Law and Society 75; G.Mazarelo,
‘Emergency Legislation in the United Kingdom’ (2009) 11 European Journal of Law Reform 323;
A. Greene, ‘Questioning executive supremacy in an economic state of emergency’ (2015) 35
Legal Studies 594.
© 2022 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1463–1503
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the original work is properly cited.
A Study of the Coronavirus Act 2020
theme in the context of public health emergencies and crises.2This paper con-
siders the role of Parliament vis-à-vis the Coronavirus Act 2020 (CVA 2020)
as a context to explore and establish further the contours of such stresses, and
to consider what, if anything, the pandemic context might tell us about the
contemporary functioning of parliamentary accountability in the UK.
Taking as our central focus the leg islative and post-leg islative debates in West-
minster on the CVA 2020, and in Stor mont, Cardi and Holyrood on the
LCMs on that Act, we explore the robustness of parliamentary scrutiny as a key
mechanism of accountability. Broadening our analysis beyond Westminster to
consider the legislatures of the three devolved jur isdictions allows us to explore
whether and, if so to what extent, limitations in legislative scrutiny in West-
minster might be mitigated in these settings. The signicance of a four nations
approach is highlighted by the role of the CVA 2020 in empowering the gov-
ernments in Scotland and Northern Ireland with a suite of powers equivalent
to those available for England and Wales in the Public Health (Control of De-
sease) Act 1984.3Conscious of the temporalities of emergency law-making,4
the complexity and scale of the CVA 2020, its lack of textual or substantive
coherence,5and the fact that, as Lord Bethell conceded, it was ‘drafted on the
hoof’,6we consider not only the passage of the CVA 2020 but also its sub-
sequent periodic review in the House of Commons by means of ‘six-month
reviews’ (SMRs).7This allows us to consider whether such ex post facto review
was eective as a mode of compensatory scrutiny to mitigate the eects of
‘urgency’ in the passage of the Act.
Our analysis suggests that, with respect to the CVA 2020, parliamentar y ac-
countability has been lacking in signicant ways during the pandemic.We con-
tend that this is attributable not to the situation of emergency per se,but to three
key factors identied through the analysis:(a) executive decisions that have lim-
ited Parliament’s capacity to scrutinise CVA 2020 powers; (b) MPs’ failure to
maximise the opportunities aorded by the SMRs to compensate in a substan-
tive sense for limited legislative debate when passing the CVA 2020; and (c) the
limited nature of LCMs as a mode of devolved parliaments holding the central
government to account.
In presenting these factors, our analysis contributes not only to the growing
body of literature on how the pandemic has impacted on parliamentary busi-
ness in and beyond the UK,8butalsoonhowkeyactors’dispositiontowards
2 See for example A. Greene, Emergency Powers in a Time of Pandemic (Bristol: Br istol Univer-
sity Press, 2020); S. Thomson and E. Ip, ‘COVID-19 emergency measures and the impending
authoritarian pandemic’(2020) 7 Jour nal of Law and the Biosciences Isaa064;R. Cormacain, ‘Keep-
ing Covid-19 emergency legislation socially distant from ordinary legislation: principles for the
structure of emergency legislation’ (2020) 8 The Theor y and Practice of Legislation 245.
3 Coronavirus Act 2020,ss 48 and 49, Sched 18 and 19.
4 K.Fisher, ‘Exploring the temporality in/of British counterterror ism lawand law making’ (2013)
6Critical Studies on Terrorism 50.
5 E. Kirton-Darling, H. Carr and T. Varnava, ‘Legislating for a Pandemic: Exposing the Stateless
State’ (2020) 47 Journal of Law and Society S302, S306-S307.
6 HL Deb vol 802 col 1649 24 March 2020 (Lord Bethel).
7 Coronavirus Act 2020,s 98.
8 P. Evans and others (eds), Parliaments and the Pandemic (Study of Parliament Group, 2021); P. Dey
and J. Murphy, ‘Pandemic Parliamentary Oversight of Delegated Leg islation: Comparing the
1464 © 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1463–1503
Pablo Grez Hidalgo,Fiona de Londras and Daniella Lock
the principles of constitutionalism may play an important role in minimising
or exacerbating COVID-19’s eects on the ordinary functioning of the UK
constitution9and, relatedly, on the role of law in emergencies and/or crises.10
While at rst glance the CVA 2020 appears to conrm the view that,in emer-
gencies, law empowers the executive and reduces its accountability so as to
render legal constraints near futile,11 our analysis shows how this can be under-
stood not as a product of law per se but, to a signicant extent, of key actors’
‘mindset’ vis-à-vis accountability.12
Ours is not the rst study to express concerns about the extent to which
Parliament has been marginalised and disempowered,and has itself been inef-
fective or non-robust,in the pandemic. In an early intervention, Keith Ewing
put it bluntly when he asked ‘Who governs Britain?’, noting that ‘ministerial
statements in Parliament have given way to daily briengs by ministers (anked
by government experts) in an empty room with journalists,not MPs, on the re-
ceiving end remotely to ask questions.Broadcast live to the nation,the spectacle
reinforces the marginalisation of Parliament … Absent a crisis, this would look
like something straight from the populists’ playbook’.13 Meanwhile, in a joint
letter to The Times on the 21 April 2021, representatives of the Constitution
Unit at UCL,the Hansard Society,the Bingham Centre for the Rule of Law, and
the Public Law Project characterised the extent of Parliament’s marginalisation
of the House of Commons as shocking.14
Performance of Westminster Systems’ (2021) 15 ICL Jour nal 465; S.Pr iddy,‘Measures taken by
the House of Commons in Response to the Covid-19 Pandemic’(2021) 1 International Journalof
Parliamentary Studies 173; S.Chaplin S, ‘Protecting parliamentary democracy in “plague” times:
Accountability and democratic institutions during the pandemic’ (2020) 46 Commonwealth Law
Bulletin 110.
9 For a recent study on roleof constitutionalist mindset in the UK, also referred to as ‘self-restraint’
or the ‘good chap principle’, see A. Blick and P.Hennessey,Good Chaps No More? Safeguarding the
Constitution in Stressful Times (London: The Constitution Society,2019). On the idea of comity,
see D.Oliver,‘Parliamentand the Cour ts:A Pragmatic (or Principled) Defence of the Sovereignty
of Parliament’ in G. Drewry and A. Horne (eds), Parliament and the Law (Oxford: Hart Publishing,
2nd ed, 2018). Cr itically assessing Johnson’sadministration, see D.Judge,‘Walking the Dark Side:
Evading Parliamentary Scrutiny’ (2021) 92 The Political Quarterly 283.
10 For example see O.Gross,‘Chaos and Rules’(2003) 112 The Yale Law Journal 1101; D.Dyzenhaus,
The Constitution of Law:Legality in a Time of Emergency (Cambr idge: Cambridge University Press,
2006); T.Sorell ‘Morality and Emergency’ (2002) 103 Proceedings of the Aristotelian Society 21;
D. Cole, ‘Judging the Next Emergency: Judicial Review and Individual Rights in Times of
Crisis’ (2003) 101 Michigan Law Review 8; B. Ackerman, Before the Next Attack: Preser ving Civil
LibertiesinanAgeofTerrorism(New Haven, CT: Yale University Press, 2007); M. Tushnet,‘The
Political Constitution of Emergency Powers’ (2007) 91 Minnesota Law Review 1451; N.C.Lazar,
States of Emergency in Liberal Democracies (Cambridge: Cambridge University Press, 2009) ch 5; J.
Ferejohn and P.Pasquino,‘The Law of the Exception: A Typology of Emergency Powers’(2004)
2International Journal of Constitutional Law 210; A. Greene, Permanent States of Emergency and the
Rule of Law (Oxford:Hart Publishing,2018); K. Loevy,Emergencies in Public Law:The Legal Politics
of Containment (Cambridge: Cambridge University Press, 2015); E.J. Criddle (ed), Human Rights
in Emergencies (Cambridge: Cambridge University Press, 2016); M. Head, Emergency Powers in
Theory and Practice: The Long Shadow of Carl Schmitt (Oxford: Routledge,2015); O. Gross and F.
Ní Aoláin, Law in Times of Crisis (Cambr idge: Cambridge University Press, 2006).
11 For example see Gross, ibid; Ackerman, ibid; Tushnet, ibid.
12 Dyzenhaus, n 10 above; Sorell,n 10 above; Cole,n 10 above.
13 K. Ewing, ‘Covid-19:Government by Decree’ (2020) 31 King’s Law Journal 1,24.
14 The Times 21 Apr il 2021. For an extended version of this letter, see: M. Russell and others,
‘The marginalisation of the House of Commons under Covid has been shocking; a year on,
© 2022 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1463–1503 1465
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