Sam McBride: An avoidable flaw in how Stormont makes coronavirus law is leading to absurdity – and undermining scrutiny

About a dozen MLAs went through the motions of debating and then unanimously agreeing to the latest regulations relating to the coronavirus restrictions – the inelegantly titled Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment No. 3) Regulations (Northern Ireland) 2020.

I have lost count of how many coronavirus regulations have been passed (and many which have been repealed or amended) and so this is no longer some new and unknown area – in fact, for many MLAs who have only held their seats for a few years this is far more familiar territory than the process of setting a budget.

Nevertheless, what happened on Tuesday was in many ways farcical – as several MLAs themselves observed.

The heart of the absurdity lay in the delay between the Executive making the law and the point at which the legislature was allowed to debate and vote on that law.

That might seem the sort of dry technicality which matters nothing to any remotely normal person. But far from being unimportant, this is crucial to the democratic legitimacy of the restrictions under which we are now living and to the relevance of the Assembly as a legislature.

In simple terms, there are two forms of legislation – primary and secondary. Primary legislation generally is the most controversial or involves major changes to government policy and it is therefore meant to be subjected to rigorous line by line scrutiny by MLAs. Often, however, a piece of primary legislation – which starts as a bill and then becomes an act of the Assembly – gives a department powers to make secondary (or delegated) legislation in the form of regulations.

The House of Commons’ procedural bible, Erskine May, succinctly explains the principles involved: “The justification and advantages of delegated legislation arise from its speed, flexibility and adaptability. Once Parliament has by statute laid down (often in some detail) the principles of a new law, the executive may by means of delegated legislation work out the application of the law in greater detail within these principles, adapting it to fit changing circumstances.”

While secondary legislation allows a department to act urgently to make law in a crisis, the drawback is a lack of democratic scrutiny.

It is common for secondary legislation to become law immediately when it is made by a department, with the legislature retrospectively approving it within a set period.

But whereas a change to the land registry fees, dog control orders, or the penalty for having a high hedge are discreet and generally uncontroversial areas, the pandemic regulations involve sweeping curtailments to fundamental human liberties, the destruction of livelihoods and other unintended consequences.

On Tuesday, MLAs considered the coronavirus regulations made by the Department of Health on September 11 – thus they were debating the legislation almost a month after it had become law.

The legislation being debated this week allowed children’s soft play areas to re-open. That led to the farcical position of the Assembly – not for the first time – discussing relaxing restrictions at a point where restrictions are being reimposed.

The SDLP’s Matthew O’Toole said that the debate felt “slightly surreal” and the point in time which they were debating “feels almost quaint and tiny, frankly, in relation to the seriousness of the statistics that are coming at us every day”.

Party colleague Sinead McLaughlin said that debating relaxing restrictions while reimposing restrictions “is not clear messaging”.

It was also a scene which appeared to have a pre-determined outcome – the law had already taken force, soft play areas had reopened and that was presented as the end of the matter, with no warning that legislators might overturn the regulations when they debated them.

It is a scene that has been repeated on multiple occasions over recent months – and unless something changes, will continue to be how Stormont makes and relaxes its restrictions over the winter.

As a consequence of the delay in debating each change there is now a backlog of at least four new laws which have full legal force as you read this but which have never been debated or voted on by MLAs. 

There are at least three problems with what is happening.

Firstly, debating whether regulations were appropriate three or four weeks ago is self-evidently ludicrous. Therefore the ‘debate’ itself becomes meaningless insofar as it relates to the legislation which supposedly is being debated.

That was demonstrated by how junior minister Declan Kearney – who did a good job of attempting to explain the various iterations of the labyrinthine regulations as they have evolved over six months – spent most of his speech not actually arguing the merits of the regulations before the Assembly that day.

Mr Kearney admitted that “the landscape today is quite different from when the amendment on soft-play areas was made”, with new cases of the virus now 500% higher than at that point.

Secondly, it is demeaning to the Assembly to not allow it to perform its primary role of legislating in a meaningful way. What is now happening has the appearance of a ‘tick-box’ exercise whereby the Executive by law needs to secure the consent of the Assembly within 28 days of passing regulations but shows no respect to the legislature by allowing it to debate the regulations at the point when they are made.

That is all the more baffling because this week – as in every week since the restoration of devolution – there has been a paucity of legislation before the Assembly.

Only the Speaker’s willingness to accommodate a plethora of private member’s motions – effectively the Assembly acting as a debating society, with no binding outcome – has prevented the sight of MLAs finishing their work mid-afternoon or earlier.

The third and most pressing problem with this system is its impact on already fragile public confidence. The conspiracy theorists are mostly beyond the reach of rational argument, but any reasonable person observing how Stormont is handling this situation must have been at best baffled and at worst alarmed by how little real debate there is as to the appropriateness or efficacy of what is happening.

Given the Assembly’s sparsely populated order paper and the importance of these regulations, why can they not be brought immediately to the Assembly (even reconvening it on a non-sitting day for two or three hours if necessary) for a debate and a vote before they become law? Having spoken to several knowledgeable senior Executive sources this week, none of them could set out a reason why that was not happening.

There is also arguably a role for the Assembly and its Speaker, Alex Maskey, in being more assertive with the Executive by demanding that these regulations are brought to it at an earlier stage.

There ought to be a healthy tension between any legislature and the executive branch which it helps oversee. In Stormont’s system, with just six of the 90 MLAs in parties outside the Executive, that is inherently problematic.

Yet Mr Maskey has shown some willingness to confront the Executive, bringing ministers to the chamber to answer multiple urgent questions and chiding them when they make important announcements outside the chamber.

It is ultimately in the interests of all of us – including the Executive – that legislation of this magnitude is thoroughly scrutinised, that errors are spotted, that the assumptions which lie behind it are tested, and that criticism is aired in the democratically-elected legislature rather than being driven underground.

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