Emergency COVID-19 Legislation – Judges Crack the Democratic Whip

Wide-ranging legislative changes that would normally require months, even years, of consultation were rushed through in a matter of days in response to the COVID-19 pandemic. A Court of Appeal ruling in a landmark case concerning emergency changes to the children’s social care system revealed the critical role judges play in ensuring that democratic principles are observed.

In the days prior to lockdown, the Government proposed sweeping changes to the system which were, at breakneck speed, enshrined in the Adoption and Children (Coronavirus) (Amendment) Regulations 2020. They introduced numerous amendments to 10 statutory instruments which, amongst other things, provide safeguards relating to the adoption, fostering and monitoring of children in care. The changes were presented as ‘minor’ and as a means of improving flexibility and reducing administrative burdens on local authorities, social workers and others during the pandemic.

Children’s charity Article 39 sought judicial review on the basis that the Regulations should not have been introduced without prior consultation of the Children’s Commissioner for England – who performs an important role in promoting and protecting the rights of children – and other independent bodies focused on the needs of children in care. Its challenge was, however, rejected by a judge.

Ruling on Article 39’s appeal against that outcome, the Court acknowledged that the pandemic presented the Government with an unprecedented crisis. Rather than following a more formal, drawn-out process, it was plainly appropriate for the Secretary of State for Education to carry out rapid, informal consultations, substantially by email, before the Regulations passed into law.

The changes wrought by the Regulations were, however, certainly substantial and there had been sufficient time to consult the Commissioner and other bodies representing children’s rights prior to their introduction. The Court found that the failure to do so was irrational and conspicuously unfair.

They had a legitimate expectation that their views would be sought and, by excluding them from the process, the Secretary of State had consulted on an entirely one-sided basis. He would unquestionably have been better informed had he consulted bodies representing those most directly affected by the changes – vulnerable children in care.

The Court noted that the Regulations had now expired, having been in force for only six months. After a due process of consultation, they had been replaced by new legislation, drafted in much more limited terms. Article 39 was nevertheless granted a declaration that the Secretary of State acted unlawfully by failing to consult the Commissioner and other relevant bodies before introducing the Regulations.