On 24 July 2020, the House of Lords is due to debate two new regulations relating to the coronavirus pandemic:

Both instruments are subject to the made affirmative procedure and require approval by both Houses of Parliament. They are both already in force, but if they are not approved they will cease to apply. 

The regulations amend and reduce the restrictions in place due to coronavirus. For example, under the regulations pubs and restaurants were able to open on 4 July and most beauty salons were able to open on 11 July.

They have been made using powers available under the Public Health (Control of Disease) Act 1984.

What do they do?

The regulations are the latest in a series of regulations setting out the ‘lockdown’ restrictions during the coronavirus pandemic. For example, the rules on gatherings and on what businesses can open.

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 update and consolidate the laws setting out the restrictions. It revokes most of the previous regulations and has the effect of relaxing many of the restrictions. For example, it contains fewer restrictions on what businesses may open.

The regulations:

  • Provide a reduced list of businesses that are required to stay closed. This includes casinos, night clubs, bowling alleys and indoor leisure facilities (such as gyms and indoor swimming pools).
  • Prohibit gatherings of more than 30 people in private dwellings, subject to certain conditions (for example, if it is for elite sport coaching).
  • Allow the Government to restrict access to a specified public outdoor place or certain types of places. This would be done if there is a serious and imminent threat to public health and it is a proportionate means of restricting the spread of coronavirus. The Government has stated that this is in response to incidents where some places became particularly crowded.

The regulations also set out the enforcement powers and make it an offence to break the provisions without “reasonable excuse”.

The amendment regulations further reduces the list of businesses that have to stay closed. They amend the main regulations so that certain beauty salons and tattoo parlours are allowed to open. They also allow outdoor swimming pools and water parks to open.

The Government has since announced its intention that leisure centres and indoor pools and gyms could reopen on 25 July. However, this is not yet provided for in the regulations.

The regulations must be reviewed at least once every 28 days, with the next review due on 30 July 2020.

How do the regulations fit within the Government’s strategy?

In May, the Government published its recovery strategy for the coronavirus pandemic: ‘Our plan to rebuild: The UK Government’s COVID-19 recovery strategy’ (accessed 15 July 2020). This included a three-step plan for lifting the restrictions.

The explanatory memorandum to the main regulations addresses this, stating:

As part of Step 3 of the government’s recovery strategy for the Covid-19 pandemic, the Government announced the opening of the hospitality sector from 4 July. The Prime Minister also announced on 23 June 2020 further relaxations in relation to gatherings to come into force in parallel. These further relaxations are possible due to the decrease in the transmission rate and decreasing rates of hospitalisation and fatalities. The Chief Medical Officers have downgraded the UK’s Covid Alert Level from four to three, meaning that we no longer face a virus spreading exponentially though it remains in general circulation. These regulations are supported by detailed Government guidance, across all affected sectors, as well as providing more information to the public about how to stay safe and reduce the transmission risk […]

Revoking and replacing the previous regulations with this new instrument increases the permissiveness of the regulatory regime, enabling the reopening of indoor and outdoor public houses, restaurants, cafes and bars, in line with Step 3 of the government’s plan. It also permits the reopening of holiday accommodation, and several leisure and recreational businesses and attractions […]

As infection rates have decreased, the regulations are more permissive in relation to gatherings, with restrictions on gatherings of more than 30 individuals in private dwellings, on a ship or boat (other than for public transport) or unmanaged outdoor spaces, save for a small number of exceptions and a prohibition on indoor raves involving more than 30 individuals.

Parliamentary process and scrutiny

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 were laid before parliament on 3 July and came into force on 4 July. The amendment regulations were laid on 10 July and came into force on 11 July.

Both instruments are subject to the made affirmative procedure. Therefore, they need to be approved by both Houses of Parliament to remain law. The regulations are scheduled to be approved in the House of Lords on 24 July.

Although a motion to approve the instrument has yet to be agreed in the House of Commons, it was debated on 16 July by a Commons delegated legislation committee. The Government described the changes as a significant move to restart the economy.

Labour did not oppose the regulations, stating they agreed it was important to get people back to work and being able to see friends and family. However, they criticised the Government’s handling of the coronavirus regulations, saying that Parliament was not being given adequate opportunity to scrutinise all the changes being introduced. For example, Justin Madders, Shadow Minister for Health and Social Care, noted that these regulations were in force almost a fortnight ago and stated that Parliament had not even had chance to debate the previous regulations, as these had been revoked by the new ones before that happened. He said:

I think it is fair to say that at the start of the pandemic we understood why it was not possible to debate the regulations straightaway, but there is no longer any reason why regulations cannot now be debated in an orderly fashion, before they are formally made law.

Labour noted that the regulations made “significant” changes to the rules, including the fact they now only prohibit gatherings of 30 or more people:

These are now the only restrictions on people gathering together. Gone completely are the regulations about who people can meet, where and when. Those rules have now become guidance. The guidance on seeing friends and family is still that people should only be socialising in groups of up to two households indoors or up to six people from different households outdoors, but it is only against the law for gatherings of more than 30 people to take place in private homes.

Mr Madders also raised concerns about the fixed penalty notices being issued under the provisions, citing a disproportionate impact on BAME communities:

It is a concern that the regulations appear to be disproportionately impacting the BAME community. Some 12% of fixed-penalty notices were issued to those identifying as Asian, who represent 7.8% of the population in England, and 35% of the fixed-penalty notices were issued to those identifying as black, despite the fact that they represent 3.5% of the population in England.

Speaking for the Government, Jo Churchill, Minister for Prevention, Public Health and Primary Care, accepted the point about parliamentary scrutiny, but stressed that the situation was still dynamic and that fitting that in with the parliamentary timetable was a challenge. However, she stated that the Government was trying to get the regulations debated as soon as possible. In addition, she emphasised the importance of people continuing to follow guidance on social distancing.

On the point about enforcement, Jo Churchill indicated that the Government were in daily contact with relevant agencies to ensure that there was consistency around enforcement, and had considered the equalities impact throughout. 

The House of Lords Secondary Legislation Scrutiny Committee considered the main set of regulations in its report published on 16 July. However, it did not draw them to the special attention of the House.

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