When it became clear that a pandemic was underway, the government did something idiosyncratic. Unlike many current foreign governments and previous British administrations, the UK did not declare a state of emergency. With possibly the highest “excess” death rate in Europe and a government response that could favourably be described as chaotic, this decision now looks not only odd but wrong. The government needs to urgently reconsider its earlier position as we head for what could well be another wave of infections.
The UK’s emergency law is enshrined in the Civil Contingencies Act. This is legislation specifically designed to help the country deal with a national emergency – whether it’s caused by terrorism, a natural disaster or a pandemic. Crucially, it immediately establishes a clear set of roles and responsibilities for those involved in emergency preparation including emergency services, local authorities and the NHS. And, as a last resort, it allows for the use of emergency powers – subject to a robust set of safeguards.
However, instead of invoking the CCA, the government drafted the coronavirus bill and rushed it through parliament. When asked why it was not being invoked, the leader of the House, Jacob Rees-Mogg, gave the unconvincing reply that the CCA is for emergencies of which the government has had no warning.
What the government overlooked is that the CCA draws on literally decades – even centuries – of experience of dealing with crises. That oversight now looks deeply irresponsible when one considers some of the serious problems that have come to light during the pandemic response.
Perhaps most telling is the fact that the CCA provides for very clear lines of decision making: most importantly, delineating the responsibilities of the local and the central state. It says that “decisions should be taken at the lowest appropriate level with coordination at the highest necessary level”. The reason for that principle is clear: in a complex and rapidly changing crisis, local knowledge and speedy action is vital.
By contrast, the pandemic response has been characterised by central government seizing control of decision-making and doing its best to sideline other bodies, most notably local councils and public services. As the drafters of the CCA might have warned, the inevitable result has been chaos on the ground.
Perhaps the most tragic outcome has been the abandonment of test and trace in March. This was the direct result of central government trying to run the scheme through a national body – Public Health England – which soon realised it had far too limited capacity to. Since that fiasco, the government has decided to involve local councils. Nevertheless, the balance of decision-making power is still woefully unclear. One result of this is that Downing Street’s decision to launch test and trace by 1 June has inevitably meant that local resource and intelligence have not been in place.
"What the government overlooked is that the CCA draws on decades of experience of dealing with crises. That oversight now looks deeply irresponsible"
And a big further problem lurks in the shadows. When the CCA is invoked, something called the Bellwin Scheme conventionally comes into operation. This is an established way of distributing funds to local areas needed to fight a crisis. It gives certainty to councils and other services that not only will they receive support to respond to dangerous situations but also makes it clear how much they can expect to receive, allowing them to plan effectively.
Like the CCA, the Bellwin Scheme has not been invoked. And the result is quite frankly a mess. The government first told councils back in March they would be reimbursed in full for the costs from the pandemic. Then it changed its mind. Those extra costs, alongside lost income, means that many councils are now planning major cuts and may even have to declare bankruptcy just at the point they should be focused on test and trace and preparing for a possible second wave.
All of this does raise the question of why the government decided not to go down the state of emergency route in the first place. Could it be that government really didn’t like the CCA’s emphasis on scrutiny? The act requires close parliamentary oversight of how it is being used, it has to be extended by parliament every 30 days and it stresses the Speaker’s right to recall the House of Commons at any time. The Coronavirus Act, by contrast, gives the government very extensive powers with little or no need for parliamentary approval or scrutiny. Unlike the CCA, these powers can remain with the government for two years.
Clearly, we cannot go into a second wave of infections following the same chaotic route we did with the first. We know that there are certain characters at the heart of government who are absolutely convinced that they know better than anyone else. But some humility might be appropriate at this stage. If it looks like the virus is spiking again, the government should repeal the Coronavirus Act, channel the wisdom of generations by invoking the CCA, and enable an agile, local response this time – for everyone’s sake.