What Covid Regulations might MPs be asked to debate on 14 December and how will the Regulations be approved?

As of 11 December, only the face coverings SI has been formally scheduled for debate in the House of Commons on 14 December. Otherwise, the House’s ‘Future Business’ paper lists for that day only “Motions to approve statutory instruments relating to public health”.

In addition to the two remaining prospective ‘Plan B’ SIs (on testing instead of isolation, and ‘Covid passports’), there are two further Coronavirus-related SIs that pre-date the ‘Plan B’ announcement and have been laid before Parliament, but still require parliamentary debate and approval:

• The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No.5) Regulations 2021 (SI 2021/No. 1382) is in effect a legislative ‘tidying-up’ measure that extends the current exemption from self-isolation requirements to people considered fully vaccinated under the International Travel Regulations. The exemption does not apply to contacts of a confirmed or suspected case of the Omicron variant. This SI was laid before Parliament on 8 December and most of its provisions came into force on 9 December (some are due to come into force on 18 January 2022). Given that this SI was made and laid before Parliament prior to the face covering Regulations, it is not clear why it has not also been confirmed for debate on 14 December.

• The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2021 propose to extend the requirement for mandatory Covid-19 vaccination to anyone working in the NHS in a regulated activity in the health and social care sector who will have direct, face-to-face contact with a service user, unless subject to a medical exemption. This draft SI was laid before Parliament on 9 November but has not yet been debated – or scheduled for debate – by MPs. It is scheduled to be debated by the House of Lords on 14 December. Given the SI’s anodyne title, it is unsurprising that many parliamentarians may not have realised that Regulations to extend mandatory vaccination to NHS workers have already been laid before Parliament.

Taking the ‘Plan B’ and earlier, still-pending, SIs together, and given the difficulties the government faces on its own backbenches, the House of Commons could be asked to debate and approve as few as one, most probably three, but possibly as many as five SIs on 14 December. This assumes that the government does not decide before then that it needs further measures.

Of the five known probable SIs, the mandatory NHS vaccination SI is a ‘draft affirmative’ SI: it cannot be made into law (signed by the Minister) unless and until it has received parliamentary approval. The remaining four are, or are likely to be, ‘made affirmative’ SIs: they are made into law before being laid before Parliament, but cannot remain law unless they receive parliamentary approval within a statutory period. In the case of ‘made affirmative’ SIs under the emergency procedure (Section 45R) in the Public Health (Control of Disease) Act 1984, this statutory period is 28 days from the date on which an SI is made, not counting periods when both Houses of Parliament are adjourned for more than four days. Taking account of currently planned parliamentary recess dates, by our count any such SIs made on 13 and 14 December 2021 would need to be approved by 28 and 29 January 2022.

In its policy paper on the possible introduction of ‘Covid passports’ in a ‘Plan B’ scenario, published on 27 September, the government stated that it would expect to make the relevant Statutory Instrument under Section 45C of the Public Health (Control of Disease) Act 1984 and that, if the measure were needed urgently, it would use the emergency procedure under Section 45R. (The government has already used the emergency Section 45R procedure 95 times during the pandemic.)

In its September paper, the government said that it would “seek to provide a vote in Parliament ahead of any regulations coming into force”. It has also stated that ‘Covid passports’ will be a requirement from 15 December, and that it plans to lay the relevant Regulations on 13 December ahead of their debate on 14 December.

Especially given that the ‘Covid passport’ SI is not published as of 11 December, this prospective timetable before it comes into force on 15 December is inadequate to allow any proper scrutiny to take place. MPs will have almost no time to read the legislation and any supporting material, such as the Explanatory Memorandum and any Impact Assessment.

The ‘Covid passport’ measure is opposed by a growing band of Conservative backbenchers and, reportedly, some MPs on the government payroll. The scale of the prospective rebellion raises the possibility that the government might have to rely on Opposition votes to get its measure through. This would be politically risky and could fatally undermine the Prime Minister’s position among Conservative MPs, following an already torrid month for him.

However, the fact that the ‘Covid passport’ SI will be subject to the emergency ‘made affirmative’ procedure in theory might give the government more options. Notwithstanding the government’s promise to try to give Parliament a vote before they come into force, the Regulations are only required to win parliamentary approval by late January. In theory, the government could introduce and enforce ‘Covid passports’ until then without the measure receiving any formal parliamentary scrutiny or approval. Moreover, the SI will be sunsetted to expire on 26 January. If ‘Covid passports’ were no longer needed after that point, the government could simply let the SI lapse without it ever having been put to a debate or approval decision. If ‘Covid passports’ were needed after that date, the government could simply lay an identical SI and set the 28-day clock running again.

However, politically, it would be extraordinarily difficult for Ministers to take such an approach. Given the position in which it finds itself, and if the reported numbers of likely Conservative party rebels are accurate, the government would therefore appear to have four options on ‘Covid passports’ – from its perspective all of which are politically unpalatable:

1. rely on Opposition votes to win approval for ‘Covid passports’ on 14 December, which would be deeply damaging for Conservative Party unity;
2. introduce ‘Covid passports’ from 15 December but delay the debate and approval vote on the measure until the New Year, which would also be politically very difficult and give rise to further damaging accusations of ‘government by diktat’;
3. introduce ‘Covid passports’ from 15 December and let the measure lapse at the end of January without it ever having received parliamentary approval, again raising the prospect of inter- and intra-party conflict about the constitutional role of Parliament; or
4. abandon the measure and risk seeing its health messaging fatally undermined by its party management failures and the erosion of trust in the government’s approach to the pandemic.

The Prime Minister, Boris Johnson MP, chairs a press conference on the Covid-19 variant Omicron in Downing Street with Chief Medical Officer Professor Chris Whitty on 8 December 2021. © Andrew Parsons / No 10 Downing Street

The draft SI proposing to extend mandatory Covid-19 vaccination to NHS and care sector workers is due to come into force 12 weeks after it is made. The government has indicated that it plans to bring it into force from 1 April 2022. This suggests that the draft SI would have to be approved by both Houses by the end of the first week of January at the latest. Especially given that the Instrument is scheduled for debate and an approval decision in the House of Lords on 14 December, it might therefore be bundled together with other Covid-related SIs for debate and decision in the House of Commons the same day.

What is the Secondary Legislation Scrutiny Committee (SLSC)? The SLSC is a House of Lords Select Committee appointed to examine the policy merits and implications of delegated legislation which is laid before the House of Lords and which is subject to a parliamentary procedure. The grounds on which the Committee may draw delegated legislation to the special attention of the House include that it: is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; may be inappropriate in view of changed circumstances since the enactment of the parent legislation; may imperfectly achieve its policy objectives; is accompanied by inadequate explanatory material; or is associated with a consultation process in which there appear to be inadequacies.

However, the SI has been subject to a damning report by the House of Lords Secondary Legislation Scrutiny Committee (SLSC). The SLSC said that the SI’s explanatory material provides insufficient information to gain a clear understanding about the Instrument’s policy objective and intended implementation. The SLSC further highlighted that the Regulations lack practical detail about how key terms are to be applied, and that the Department of Health and Social care failed to make reference to any lessons learned from the roll-out of mandatory vaccination in care homes or identify what contingency plans it is making to cope with expected staff losses when the NHS Regulations take effect. In the House of Lords, both a ‘fatal’ and a ‘non-fatal’ motion have been tabled against the SI for the 14 December debate.

In the House of Lords, a ‘fatal motion’ is the name given to all types of motion which – if agreed by the House – would amount to a rejection of a Statutory Instrument (SI). A ‘non-fatal motion’ is a motion about an SI which, while it may be critical of the SI, does not seek to reject it. Examples include ‘take note’ and ‘regret’ motions. See our Delegated Lgislation: glossary of key terms for more information.

The Impact Assessment (IA) for the Instrument was only published on 10 December and is difficult to locate, buried away on the government website alongside the original policy consultation documentation. In any case, the independent Regulatory Policy Committee (RPC) report, published on 8 December, rated the IA as ‘not fit for purpose’. Normally, the government would take up to 30 working days to respond to the RPC’s report. However, “given the urgency of these measures”, it rushed out a response which was also published on 10 December.

Counting the SI, the Explanatory Memorandum, the Impact Assessment, the Regulatory Policy Committee’s report and the government’s immediate response, there are over 100 pages of documentation to read and scrutinise.

If the NHS mandatory vaccination SI is scheduled for debate in the House of Commons on 14 December, but MPs only learn this the preceding day, it will once again confirm the extent to which Ministers take advantage of the interplay between their control of the House of Commons agenda and delegated legislation scrutiny procedures.

The government has no discretion over whether any particular SI does or does not require parliamentary approval: this is prescribed in the SI’s parent Act of Parliament.

However, the government may determine the way in which SIs are debated and approved, through its control of the House of Commons’ agenda and procedures.

Normally, an affirmative SI debated in the Chamber of the House of Commons (rather than in a Delegated Legislation Committee) is subject to a 90-minute debate, followed by a decision on the approval motion.

However, when multiple SIs with a common theme are to be debated on the same day, it is not unusual for the government to lay a Business of the House motion wrapping discussion of the SIs into a single, longer, debate. Normally, at the end of such a combined debate, each SI is still subject to an individual approval decision, via separate decisions on each approval motion.

In theory, a Business of the House motion can do almost anything. It is therefore arguably possible that the government could lay a motion to the effect that, at the end of the combined debate, the Chair should put a single question on all the outstanding motions.

However, Business of the House motions themselves require the agreement of the House. Given the number of Conservative MPs who are opposed to some of the government proposals that may be before the House on 14 December, the government would likely be reliant on Opposition support to pass any Business motion proposing the approval motions for the SIs to be decided via a single ‘omnibus’ question. If the Minister moved such a Business of the House motion and it was defeated, the House would revert to the default procedure – that is, separate 90-minute debates and decisions on each SI.

If a single question were put with respect to the approval motions for multiple SIs, any Member could also make a ‘complicated question’ claim to the Speaker, demanding that the single question be divided into a series of separate ones for decision. However, if the House had agreed a Business of the House motion bundling all the SI decisions together, the Chair might assert that its hands were tied.

This piece was amended on 20 December 2021 to correct an error.