Lord Sumption advises MPs on Public Health Act reforms to protect society from future harm

The Pandemic Response and Recovery All-Party Parliamentary Group has heard from former supreme court judge, Lord Sumption, about the legality of the government’s pandemic policies.

As the Covid Inquiry preliminary hearings get underway, including Module 2 which examines core political and administrative decision making in the UK, Lord Sumption told a packed meeting that parliament effectively became impotent under the scheme of the Public Health Act and Ministers persistently failed to weigh up health benefits of lockdowns against the collateral costs, which have proved to be catastrophic.

Lord Sumption went on to say: “There is a need to have emergency powers, but their use must be limited to the occasions when they are really necessary. Secondly, where ministers have to exercise executive judgement they must be responsible to parliament. A health emergency may one day necessitate NPIs but neither the mortality rate nor the known risk profile made covid-19 one. We had a contingency plan, the Pandemic Preparedness Strategy 2011, which made no recommendation for lockdown. Nor did the other 27 European pandemic plans recommend lockdowns, all of which were published by the European Centre for Disease Control on 5 Feb 2020, three weeks before the first one was imposed in Italy. Yet they were discarded without, as far as I can see, any justification at all. In the UK, the government then used a loophole in the Civil Contingencies Act, designed for all such emergencies, health included, to avoid the degree of parliamentary supervision to which that Act subjects Ministers.

“The Public Health Act does not require the same parliamentary supervision and so the government were able to negate parliament and effectively render it impotent and in the case of covid-19, the opposition supported even tougher measures. Against that background, there are two areas where use of the PHA should be amended to prevent the kind of ill considered measures that we saw implemented for the first time in 2020: the power to control the movements or contacts of people who are not infectious should be subject to the same provisions for parliamentary supervision that would apply under the CCA; and radical measures, such as lockdowns, affecting the entire population, should only be made after Ministers have considered the collateral costs, lest they prove to be catastrophic, which they have.”

The Group’s Chair, Rt Hon Esther McVey MP, said: “Members of this Group, and other colleagues, have challenged the government’s emergency measures from the start. The almost total removal of parliamentary oversight and scrutiny using the Public Health Act has allowed the government to act without being held responsible. As Lord Sumption has said, it is up to parliamentarians to scrutinise government policy, hold Ministers to account and if we don’t get satisfactory answers vote down regulations, a process that all but collapsed from March 2020.

“As the Covid Inquiry gets underway, I am all too aware of how much we must learn from the last three years, chiefly that parliamentary supervision and its control over the government’s ability to exercise radical power is fundamental. The Civil Contingencies Act was designed for such emergencies with the necessary checks, but it was overlooked, arguably because it came with too much scope for parliamentary scrutiny. Whatever the outcome of the Inquiry, amending the Public Health Act will mean we are able to better protect people from damage to their health, mental and physical welfare, their children’s education and their livelihoods.”

Rt Hon Sammy Wilson MP added: “There is a huge amount to learn from our response to Coronavirus and the terrible impact that response has had on the country, economically, socially and on the public’s health. It has been devastating for many people and much of it resulted from extremely poor government policy and advice. But parliament was also at fault, for not holding the government to account. I questioned those policies from the start but as Lord Sumption has made clear today there are some very fundamental questions about how we are governed which we must address.

“Whatever the scope of the Covid Inquiry, unless we, parliamentarians, take steps to safeguard and reinforce our ability to scrutinise parliament, it could happen again and people will again suffer avoidably. We must be able to question and demand changes in government decision making, even in the throes of a crisis, to prevent such a damaging subversion of our democracy. Reforming parts of the Public Health Act 1984, upon which the government relied to bring in many of their disastrous policies, is now vital.”

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Biography of Lord Sumption:

Lord Jonathan Sumption is a British judge and historian. He served as a Justice of the Supreme Court from 2012 to 2018. He is the author of the Sunday Times bestseller Trials of the State (Profile, 2019), and has written several books of mediaeval history including Pilgrimage, The Albigensian Crusade, and four books on the Hundred Years’ War, the third of which, Divided Houses, won the 2009 Wolfson History Prize.