On 26 October 2021, the House of Lords is due to consider the temporary provisions of the Coronavirus Act 2020. The act will be debated alongside the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 3) Regulations 2021 (the amendment regulations).
What the Coronavirus Act does
The Coronavirus Act 2020 (the act) came into force on 25 March 2020. It provides public bodies with powers to respond to the Covid-19 pandemic.
The aims of the act, as described by the UK Government in the explanatory notes to the Coronavirus Bill, were to:
- increase the available health and social care workforce;
- ease the burden on frontline staff;
- contain and slow the virus;
- manage the deceased with respect and dignity; and
- support people.
As of 18 October 2021, the Government has laid a total of 513 coronavirus-related statutory instruments according to the Hansard Society’s coronavirus statutory instrument dashboard. Of this total, 26 of these instruments were laid under the act, with the remainder laid under 134 other pieces of legislation, including the Public Health (Control of Disease) Act 1984.
How the act is scrutinised
The act includes powers to ensure that parliamentary scrutiny of the act’s temporary provisions takes place. These powers include:
- Section 97 requires the Government to prepare and publish a report every two months on the status of the non-devolved provisions of the act.
- Section 98 requires the temporary, non-devolved provisions of the act to be subject to a review and renewal vote in the House of Commons every six months. The six-monthly review gives MPs the opportunity to consider the motion ‘that the temporary provisions of the act should not yet expire’. The latest six-monthly review and renewal vote took place in the House of Commons on 19 October 2021. This statutory requirement does not extend to the House of Lords. The scheduled debate on 26 October 2021 will provide peers with the opportunity to consider the temporary provisions.
- Section 99 requires that both Houses of Parliament are given the opportunity to consider the one-year status report if the act remains in force one year after coming into force. This took place on 25 March 2021.
The act also contains a statutory expiry period. This will see the temporary provisions automatically expire at the end of 24 March 2022 (unless otherwise extended by regulations). This will mark two years after the act first came into force.
The House of Commons Library briefing ‘The Renewal of Temporary Provisions under the Coronavirus Act 2020’ explains further about the six-monthly review in the House of Commons.
What the Government’s most recent report on the act said
In September 2021, the Department of Health and Social Care published its ninth two-monthly report on the Coronavirus Act 2020. This set out which of the act’s temporary, non-devolved provisions the Government intends to expire and suspend.
Of the 27 temporary, non-devolved provisions that remain in the act, the Government plans to expire the following in England only (unless otherwise specified):
- Section 23: Time limits in relation to urgent warrants under the Investigatory Powers Act 2016. This provision provides the Government with a regulation-making power to amend sections in the Investigatory Powers Act 2016 that specify the length of time allowed for obtaining approval from a Judicial Commissioner after an urgent warrant has been issued. Regulations could extend the length of time from three working days to no more than 12 working days. The Government states that this power is no longer required. This is a reserved power and therefore the expiry will apply to the whole of the UK.
- Section 37: Temporary closure of educational institutions and childcare premises. This gives the Government and devolved administrations the power to temporarily close schools, further and higher education institutions, and registered childcare providers. This power has not been used by the Government to date. Instead, it has relied upon the issuance of guidance to limit attendance at education and childcare settings.
- Section 38: Temporary continuity: education, training and childcare. The Government intends to expire parts of section 38. This gives the Government the power to give notice to amend or disapply existing education and childcare provisions in certain legislation, if needed. The Government now intends to remove 19 of the possible 29 provisions that could be modified or amended. The Government states that the remaining 10 provisions are needed in case it needs to activate policies in line with the Department of Education’s Contingency Framework. This framework provides principles for managing local outbreaks of Covid-19 in education and childcare settings.
- Section 51: Powers relating to potentially infectious people. This gives public health officers powers to help control the spread of Covid-19. The Government said that these powers have been used 10 times in total, most recently in October 2020. The Government believes that existing powers in other legislation to deter non-compliance is now sufficient.
- Section 52: Powers to issue directions relating to events, gatherings and premises. These powers enable the Government to restrict or stop certain events and gatherings, and to close premises, if needed. This has not been used to date, with powers from alternative legislation being used to achieve this.
- Section 56: Live links in magistrates’ court appeals against requirements or restrictions imposed on a potentially infectious person. This enables individuals who have appealed to the magistrates’ court against restrictions imposed upon a potentially infected person to be heard via live link, unless otherwise specified by the court. ‘Live link’ refers to a person attending court either via live television link or the telephone.
- Section 77: Uprating of working tax credits. This allowed the rate of working tax credit to be increased to £3,040 a year for 2020/21. As this power was time-limited to the 2020/21 tax year, the Government states that it has now served its purpose. This is a reserved power and therefore the expiry will apply to the whole of the UK.
- Section 78: Local authority meetings. This enabled all local authority meetings held before 7 May 2021 to be held remotely. This power was time limited to 7 May 2021 and is therefore no longer in operation.
Additionally, the Government also intends to suspend the following:
- Parts 1, 4, and 5 of schedule 28 (section 58): Powers in relation to transportation, storage, and disposal of dead bodies. These are death management provisions that were brought in to assist the NHS in managing the deceased. The Government partly suspended section 58 on 21 April 2021 following a review. It now believes that the entire section can be suspended.
The Government said that it will introduce regulations to expire and suspend these provisions after the next recess. ‘Recess’ refers to a break in the parliamentary year in which neither the House of Commons nor the House of Lords meet to conduct business. The next recess period is scheduled to take place between 9 November 2021 and 15 November 2021.
Six-monthly review in the House of Commons
On 18 October 2021, the House of Commons considered the motion that the temporary provisions of the act should not yet expire, as required by section 98 of the act.
Speaking to the motion, Sajid Javid, the Secretary of State for Health and Social Care, said that there were certain provisions that the Government believed were still necessary. This included provisions relating to the temporary registration of nurses and other healthcare professionals, as well as provisions that provide support packages for individuals whose employment is impacted by self-isolation or other Covid-19 measures.
The motion was met with both opposition and support. For example, John Redwood (Conservative MP for Wokingham) said that the “material improvement” of the pandemic meant that the act was no longer needed. Instead, he said that the House of Commons could “grant powers in the space of a few hours” if necessary in the future.
Several MPs also expressed concerns about the opportunities that the House had been given to scrutinise the act. Dawn Butler (Labour MP for Brent Central) suggested the health secretary had been “unintentionally misleading” when referring to the House of Commons’ six-monthly scrutiny. She said:
The act has always been presented on the floor of the House as an all-or-nothing bill; MPs never have an opportunity to change, amend or scrutinise it, so I think that the Secretary of State is just a little misleading in how he is presenting it to the House today.
Jonathan Ashworth, the Shadow Secretary of State for Health and Social Care, said that the Opposition would support the motion. The main reason given for this was to safeguard the act’s provisions relating to statutory sick pay:
The main reason we will not oppose the act is the provision of statutory sick pay from day one and not day four, [as] was the case before the act received royal assent. Given that we have a Chancellor who has been very keen to cut back universal credit, I am not convinced that if the act fell today the Chancellor would carry on paying statutory sick pay from day one […].
The Shadow Secretary also expressed sympathy for concerns raised about the parliamentary scrutiny of the act, urging the Government to “find a better way” for scrutiny to take place.
Closing the debate, the Parliamentary Under-Secretary of State for Health and Social Care, Maggie Throup, said the act had been a “vital weapon” in the UK’s response to the pandemic. She noted that 13 of the non-devolved temporary provisions had already been expired, and the Government’s autumn and winter plan included a pledge to expire even more. She also said that whilst the Government did not want to keep the act’s powers in place for any longer than necessary, there were still “critical” powers in the act that the Government believed should remain in force.
Following the debate, the motion that the temporary provisions of the act should not yet expire was agreed to without division.
Covid-19 Autumn and Winter Plans
Plans for England
The vast majority of statutory Covid-19 restrictions imposed by the Government in England were lifted on 19 July 2021. This marked step four of the UK Government’s roadmap. Since then, the Government has maintained cautionary Covid-19 guidance in England.
In the strategy, the Government stated that it aimed to “sustain progress made and prepare the country for future challenges, while ensuring the National Health Service (NHS) did not come under unsustainable pressure”. The strategy contains two plans: ‘plan A’ and ‘plan B’.
Plan A included five ways that the Government’s aims for the strategy would be achieved:
- By building defences through pharmaceutical inventions such as vaccines, antivirals and disease modifying therapeutics.
- Limiting transmission by identifying and isolating positive cases through use of the test, trace and isolate programme.
- Supporting the NHS and social care by managing pressures and recovering services.
- Advising the public on how to protect themselves and others through clear guidance and communications.
- Pursuing an international approach by helping to vaccinate the world and managing risks at the border.
However, the Government acknowledged that there were several variables that could affect the success of plan A. These include vaccination levels, the emergence of new Covid-19 variants, and the unpredictable demand on NHS services caused by other respiratory diseases such as flu.
In light of the uncertainty, the Government created a contingency plan (also referred to as ‘plan B’) that can be implemented if plan A is unable to keep the virus at a manageable level. Provisions in plan B include:
- Communicating clearly and urgently to the public that the level of risk has increased, and with it the need to behave more cautiously.
- Mandating that certain settings require vaccine-only Covid-status certificates.
- Making it a legal obligation to wear face coverings in certain settings.
- Considering asking the public to work from home for a limited period.
The Government said that it hopes not to have to implement plan B in England, but would consider it if data suggested that the NHS is likely to come under sustained pressure. However, following an increase in infections since the start of October 2021, the head of the NHS Confederation is cited in the Guardian on 19 October 2021 to have warned the Government that plan B measures must be implemented urgently. Downing Street is said to be keeping “very close eye” on the situation.
Plans for Wales
The Welsh Government set out its autumn and winter plan for a Covid response on 8 October 2021. The plan includes preparations for two possible scenarios named ‘Covid stable’ and ‘Covid urgent’.
A Covid stable scenario would see Wales remain at alert level zero, maintaining existing safety measures such as requiring face coverings in most indoor public places. There are additional measures that the Welsh Government could also consider implementing, including measures for certain sectors such as education.
A Covid urgent scenario would be declared in a situation where “unsustainable pressure” was being placed on the NHS. In this scenario, the Welsh Government would implement measures in accordance with the alert levels systems. This system ranges from alert level zero (the current level) to alert level four (lockdown). The Welsh Government states that whilst it remains unlikely that increased safety measures will be necessary, this could be used as a last resort.
The Welsh Government published a ‘Health and Social Care Winter Plan 2021 to 2022’ on 21 October 2021.
Plans for Scotland
The Scottish Government published its ‘Autumn/ Winter Vaccination Strategy 2021’ on 30 September 2021. This outlined current progress on Covid-19 vaccinations, as well as its strategy for Covid-19 and flu vaccinations during the autumn/winter 2021–22.
In addition, several Covid-19 safety measures will continue to remain in place in Scotland, including: mandatory face coverings on public transport and in shops; providing contact details in hospitality venues; and requiring Covid-19 vaccination certificates at venues such as nightclubs.
Plans for Northern Ireland
The Northern Ireland Executive published its ‘Autumn/Winter Covid Contingency Plan’ on 19 October 2021. This included plans for certain safety measures to remain in force, including the legal requirement to wear a face covering in crowded indoor settings, and for mandatory risk assessments to be carried out in certain places.
In the event that infection numbers rise sharply, or hospital numbers become unsustainable, the plan sets out further measures that could be introduced. This includes reimposing a legal requirement for social distancing in certain settings, and strengthening self-isolation arrangements.
What the amendment regulations do
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 3) Regulations 2021 (the amendment regulations) came into force on 27 September 2021 and do the following:
- Modify the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (the ‘self-isolation regulations’) to: (1) clarify when a household contact who is fully vaccinated will be exempt from self-isolation; (2) extend the self-isolation exemption to include people who have received two different Medicines and Healthcare Products Regulatory Agency vaccines in the UK; and (3) clarify what individuals should do if they test positive with a lateral flow test but receive a subsequent negative PCR test result.
- Extends the expiry period in the self-isolation regulations and the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations (the no 3 regulations) from 27 September 2021 to 24 March 2022. The self-isolation regulations impose the legal duty to self-isolate for positive cases and close contacts who are not exempt. The no 3 regulations provide local authorities with powers to respond to local serious and imminent public health threats.
The amendment regulations were introduced via the ‘made affirmative’ procedure. This means that both Houses must approve them within a certain time period, or they will cease to apply. The approval period is due to expire on 5 November 2021. The amendment regulations are yet to be considered by the House of Commons or the House of Lords Secondary Legislation Scrutiny Committee.
- House of Lords Library, Debate on the Coronavirus Act 2020 and health protection regulations, 23 March 2021
- House of Lords Library, ‘Current Affairs Digest: Coronavirus (July 2021)’, 5 July 2021
- Hansard Society, ‘Coronavirus Act renewal: into the sunset?’, 18 October 2021
- Gov.uk, ‘Statistics on coronavirus in the UK’, updated daily
- UK Constitutional Law Association, ‘Six-monthly votes on the Coronavirus Act 2020: a meaningful mode of review?’, 25 March 2021
Cover image by Tamanna Rumee on Unsplash.