Leah Trueblood: ‘Following the Science:’ a Legal and Democratic Challenge

During a pandemic, it seems like a good idea for politicians to ‘follow the science.’ But what does this actually mean? The claim that the Government is ‘following the science’ is in many respects laudable, but is it also a convenient way to avoid or limit accountability? Due to a lack of transparency, it is unclear whether and to what extent substantive decisions are being made by scientists, or if this is just a politically helpful turn of phrase. A recent Institute for Government report Decision Making in a Crisis: First Responses to the Coronavirus Pandemic potentially provides some insight into this question. The report says that when deciding whether to lockdown the country in March, the Government looked to science for ‘answers’ for what to do, rather than as part of a range of inputs into a decision-making process. Is the Government delegating decisions for which, under statute, it is exclusively responsible? Possibly. It is necessary to consider how decision-making and accountability mechanisms for decision-makers must be modified to reflect this change in who exercises power in the United Kingdom and how. It is often argued that scientists should be ‘on tap but not on top.’ This post asks if this ‘on tap not on top’ relationship is possible during a pandemic, and to assess the challenges for legal and democratic accountability if it is not.

Scientific Decision-Making in the United Kingdom: SAGE and the JBC

During the early stage of the pandemic, one of the ways that scientific advice has been given to the Government is the Scientific Advisory Group for Emergencies (SAGE). It has been ‘activated’ eight times since 2009. The membership of SAGE varies depending on the emergency at stake, and those in attendance vary from meeting to meeting as well. The terms of reference state that the aim of SAGE is to make sure ‘timely and coordinated scientific advice is made available to decision makers to support UK cross-government decisions in the Cabinet Office Briefing Room (COBR).’ As the pandemic moved on, however, the Joint Biosecurity Centre (JBC) was established to advise ministers and to set the COVID threat levels. The purpose of this new body, the Institute for Government says, is not ambiguous:

The Government has not said that the JBC will replace SAGE, but from the information available we can expect that the new centre will have a more active role in advising ministers than SAGE. SAGE coordinates and presents scientific advice to decision-makers in Government. The JBC will make specific recommendations on action the Government might take to deal with disease outbreaks.

While, as the IFG says, the details remain vague, it appears that rather than serving a coordinative function, the JBC will present substantive recommendations to ministers. This is particularly problematic given, as the Science Media Centre says, there is very little information in the public domain about the membership, staffing, and the working of the JBC. On the one hand, there are merits in keeping the specifics of the JBC quiet. There was a worry in the early stages of the pandemic about decisions of SAGE being politicised. The difficulty is, however, that science is not value-free. Scientists disagree, and their disagreements are constantly in flux. As Alex Stevens recently argued in Nature, ‘to rely on science as the determining influence on policy is to misunderstand what science is.’ Further, if the JBC are making substantive recommendations to ministers about, for example, the closing of schools, then they are exercising enormous political power. Potentially even power that only ministers are authorised to use under statutes.

Illegality and Delegation

It is not lawful for a public authority to delegate a decision for which it under statute is exclusively responsible. To do so is to give away the powers given to them by Parliament. Has the Government delegated authority for which it has exclusive responsibility under a statute, or could it do so in the future? In practice, this common law legality requirement is qualified by the Carltona principle which holds that civil servants act as the alter ego of the Secretary of State when acting on minister’s behalf. Are scientists acting on Ministers’ behalf? It is difficult to know for sure. Although the JBC has already made a recommendation to lower the covid-19 alert level, it remains fundamentally unclear what kind of body exactly it is. It is ambiguous in what capacity its members are acting. On the one hand, the JBC is part of the NHS Test, and Trace system. In that respect, it is probably a Government department like any other. The difficulty, though, is that it is not clear what the membership of the JBC beyond the head entails. Unlike SAGE, the minutes of meetings of the JBC are not publicly available. Its head, Dr Clare Gardiner, is a statistician, (apparently) seconded to the JBC from the University of Sheffield. If the membership of the JBC is anything like SAGE, however, then its members are nothing like civil servants. SAGE is made up of independent scientists at a range of universities acting in their own academic capacity. Their job is to give independent advice. While cases such as Sherwin and Castle say that the Carltona principle can apply to QUANGOs, SAGE is a very different QUANGO from the benefits agency and highways agency which were at issue in those cases. The aim of SAGE is not to deliver or determine policy, but rather to coordinate information in an advisory capacity. It appears that the JBC will be less coordinative and more emphatic in advising ministers, and that could be legally problematic.

It is not difficult to imagine the kind of case – closing of schools for example – where it is unclear where a recommendation by the JBC stops and a decision by the Government begins. Indeed, permission was denied for judicial review of the advice to close schools in Dolan v Secretary of State for Health and Social Care. The question of fettering of discretion was considered in relation to establishing the ‘five tests’ for reviewing school closures, and the five tests were found to be lawful and rational. The question of delegation to scientists was not considered, and input from scientists on the five tests was treated as ‘advice’ rather than a decision.

Dolan was a case brought under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. Would the same conclusion be found under the Coronavirus Act 2020? In the Act, s 37 allows for the temporary closure of schools by the Secretary of State and schedule 16 1(4)(a) of the Act further says that in giving the direction to close schools, the Secretary of State must ‘have regard to any advice from the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care relating to the incidence or transmission of the coronavirus.’ That is to say, the schedule holds that only consideration of advice from the CMO is necessary.

In R v Adams, Lord Kerr provided guidance about how to interpret statutes with respect to the application of the Carltona principle. Adams concerned the question of whether the making of a custody order for terrorists under Article 4 of the Northern Ireland Order 1972 required a decision by the Secretary of State or could be made by a junior minister on the basis of the Carltona principle. Lord Kerr concluded that relevant factors for statutory construction include: the framework of the legislation, the language of pertinent provisions in the legislation and the ‘importance of the subject matter,’ where the importance of the subject matter concerns particularly individual liberty. In the case of a decision like lockdown, for instance, this third requirement from Adams is significant. Lockdown was one of the most dramatic restrictions of liberty in the post-war history of the United Kingdom. This kind of decision only can and should be made by those who can be held legally and democratically accountable for its consequences. As in Adams, the Coronavirus Act ‘segregates roles.’ It is clear that in the Coronavirus Act 2020, Parliament intended the Secretary of State to only ‘have regard’ to the advice of the CMO.

The outcome of locking down the country in general, or closing schools in particular, is not in itself a bad thing. As a matter of responsible Government, though, it is a potentially poor process of democratic accountability if the decision-making process is unclear. There is the danger this cuts the other way too, without greater clarity there is no way to know if the Government are taking scientific advice seriously at all and complying with the requirements to ‘have regard’ to advice. Turning again to Stevens, he argues that during in his time on the Advisory Council on the Misuse of Drugs, ministers picked and chose which science to use on the basis of what was most politically useful.

Accountability and Scientific Expertise

Democratic decision-making in the United Kingdom has changed during the pandemic. The inherent danger that emergencies present for consolidating power in the executive are compounded by the rhetoric that this executive action is justified on the basis of ‘following the science.’ The Government has treated science as unified and value free, even when there is clear and public disagreement among scientists. Putting responsibility on the shoulders of scientists puts them in a very difficult position. This can be seen, for example, in the resignation of  Professor Neil Ferguson for indiscretions in his personal life. If scientists have a lot of power in influencing political representatives, and the Government did repeatedly say that SAGE did have enormous influence on their thinking, then it is natural the public expect the same kinds of standards of removability that they do of other political representatives. If, however, Ferguson was just a scientist acting in his academic capacity, then his private life is none of the public’s business.

To be clear: taking scientific advice seriously is the right outcome. Especially where there is scientific disagreement. Rigorous, independent, diverse scientific advice to ministers is indispensable, obviously so during a pandemic. Science is not, however, neutral. Professor David Spiegelhalter of the University of Cambridge says that when politicians say they are ‘following the science’ as a statistician he ‘starts screaming.’ It is necessary for lawyers to speak up too, particularly given the lack of clarity about the JBC. Ironically, this danger was flagged by SAGE itself in preparing for the launch of the JBC. SAGE said:

JBC should pursue a reputation as an organisation that the public can trust. This will require them to be an exemplar in terms of honesty, openness, competence and independence. These principles should be embedded into every level of the organisation and demonstrated to the public from day one. It is important to emphasise this fundamental point. As part of this, the JBC should consider the importance of transparent communication in mitigating uncertainty and hence promoting effective decision making.

SAGE was right about this. It must be clear how, and what basis, decisions are being made on behalf of the public. This is currently unclear. Further, it is necessary that those who make decisions on behalf of the public are held accountable for those decisions. If decisions are being made by scientists, or scientists are directing, guiding, or even strongly influencing what the Government decides, then scientists should be held publicly accountable for those decisions. The degree of accountability depends on the amount of power. Potentially, scientists must answer questions about their decisions to the public, be removable, and be answerable when they make mistakes. Scientific advice itself, and its underlying data, must be made public so it can be vetted. It is important that scientists also disclose their interests, for instance who funds their research and whether they have any conflicts of interest. If scientists are not making decisions, though, then the Government must be held accountable and take full –not qualified – responsibility for its decisions.

Thanks to Joanna Bell, Peter Hatfield, Hayley J Hooper, and the editors of the UKCLA blog for excellent comments on earlier versions of this post.

Leah Trueblood is a Career Development Fellow in Law at Worcester College, Oxford and a British Academy Postdoctoral Fellow at the Bonavero Institute of Human Rights.

(Suggested citation: L. Trueblood, ‘‘Following the Science:’ a Legal and Democratic Challenge’, U.K. Const. L. Blog (21st Sept. 2020) (available at https://ukconstitutionallaw.org/))