The House of Lords will soon debate a government motion to approve the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020. This is the piece of secondary legislation, made under the Public Health (Control of Disease) Act 1984, that implemented the rule of six policy in England. Both Houses of Parliament must approve the regulations before the end of a specified approval period, in this case ending on 10 October 2020, for them to continue in force.

Approval is required because the measure was implemented using the “made affirmative” procedure. In this case, the Home Secretary, Priti Patel, signed the regulations into law before laying them in Parliament. This is permitted under the parent act if the responsible minister is of the opinion that doing so is necessary “by reason of urgency”. Generally, it is more common for affirmative statutory instruments to be laid in draft and only come into force after having been approved by both Houses.

Alongside the government approval motion, the House is expected to debate a motion to regret the regulations tabled by Lord Lamont of Lerwick (Conservative). In an earlier form, the motion would have asked the House to “decline to approve” the regulations; in effect allowing them to expire. The motion has since been amended so that, if passed, the House would express regret alongside its approval. According to the tabled motion, the reason given would be twofold:

  • the Government’s alleged “failure” to adequately consult the public when preparing the regulations; and
  • the “impracticality of enforcing the measures”.

The House of Commons is expected to debate a government approval motion for the same regulations on the same day.

Background on the instrument

When and why was it introduced?

The regulations were made on Sunday 13 September 2020 and came into force at 12.01am the next day, Monday 14 September. Press reports suggest they were published very late on the Sunday evening and certainly no more than 30 minutes before taking effect. The regulations were then laid before Parliament at 10.30am on Monday.

The instrument implemented the Government’s rule of six policy, introduced in the context of rising infection rates. This had been announced by Prime Minister Boris Johnson during a press conference on 9 September. Mr Johnson presented the new policy as a simplification and strengthening of the coronavirus mitigation regime then in place, based on consultation with the police and feedback from the public that the existing rules had become “quite complicated and confusing”. He went on to give notice that the rule would apply from Monday 14 September in “any setting, indoors or outdoors, at home or in the pub” and would be “set out in law and […] enforced by the police”. Mr Johnson added that “anyone breaking the rules risks being dispersed, fined and possibly arrested”.

The Government has said the change followed agreement between the Government, Chief Medical Officer Professor Chris Whitty and Chief Scientific Advisor Sir Patrick Vallance that “urgent action” was necessary to stop the virus spreading and to continue to protect the NHS. However, figures such as Professor Carl Heneghan of the University of Oxford have argued publicly that the rule has “no scientific evidence to back it up”.

What does it do?

The instrument gives legal effect to the prohibitions outlined by Mr Johnson on 9 September. It does so by amending the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (the original regulations), which came into force on 4 July 2020 and are set to expire after six months. The original regulations have been amended a number of times since July, including by the rule of six measure.

The rule of six regulations primarily provide for the prohibition of social gatherings of more than six people, unless subject to an exemption. The instrument’s explanatory memorandum explains that such exemptions include:

  • cases in which a single household or two linked households (a support bubble) includes more than six people; and
  • other exemptions, such as where a gathering is “reasonably necessary” for work purposes; for the provision of voluntary or charitable services; for education or training; to provide childcare or to supervise activities for children; to provide emergency assistance; to enable the avoidance of injury or escape from the risk of harm; to provide care to or assistance to a vulnerable person; or to facilitate access to and contact between parents and children where they do not live in the same household.

Further exemptions included for elite sportspersons for the purposes of competition or training; gatherings required to fulfil a legal obligation; cases where the gathering is a support group; and gatherings for marriage and civil partnership (subject to certain limits) or other significant events. The regulations also provided for the more restrictive provisions contained within certain regional lockdown regulations to remain in place.

The list of exemptions has since been amended by a subsequent instrument: the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020, made on 23 September 2020. These removed the exemption for indoor organised sport and placed a cap of 15 persons allowed to attend support groups and events such as weddings and wedding receptions.

The rule of six instrument’s explanatory memorandum recorded that neither a public consultation nor a regulatory impact assessment had been undertaken in relation to the regulations.

What parliamentary scrutiny has there been to date?

The House of Lords Secondary Legislation Scrutiny Committee listed the instrument as being coronavirus related in its twenty seventh report, published on 24 September 2020. However, the committee did not draw it to the special attention of the House. It had listed the original regulations in its twenty second report, published on 16 July 2020. These were approved by the House of Lords on 24 July 2020.

The Joint Committee on Statutory Instruments has not yet reported on the regulations.

Recent developments

Police reaction on enforcement

Speaking on 11 September 2020, after the Prime Minister’s announcement of the rule of six but before the regulations had been published, Andy Symonds, chair of the Norfolk Police Federation, said that enforcing the measure would be difficult, complicated and require a significant amount of resources. He said:

It’s not straightforward. It’s very difficult and it could require a significant amount of resources if we get to the point where we have lots of people not adhering to it […] We’ve got finite resources. We still can’t respond to every single call reporting a breach of these conditions. So, if [the Government] gave lots of extra officers then we could probably enforce this, but at the end of the day we haven’t. We’ve been through many years of cuts and we’re only now starting on the slow climb back up to recruiting the extra 20,000 which will take many years.

Speaking on the day the regulations came into force, Mark Andrews, chair of Wiltshire Police Federation, echoed this sentiment. He said: “If we had 100, 200, 300 more officers then we’d be able to deal with it, but we can’t deal with everything in an effective and efficient way—we just don’t have the numbers”.

Parliamentary scrutiny of coronavirus regulations

On 29 September 2020, Bernard Jenkin, chair of the House of Commons Liaison Committee, wrote to the Prime Minister to outline his committee’s view that there should be a change in how emergency powers to deal with the coronavirus pandemic were used. He wrote that a majority of the committee supported the principle that restrictions provided for in regulations should be subject to a vote in the House of Commons before or immediately after coming into force.

In a statement to the House of Commons the next day, the Speaker, Sir Lindsay Hoyle, criticised the Government for its recent practice of publishing regulations relating to the coronavirus pandemic shortly before they took legal effect. He characterised this as amounting to “contempt”. He said:

The way in which the Government have exercised their powers to make secondary legislation during this crisis has been totally unsatisfactory. All too often, important statutory instruments have been published a matter of hours before they come into force […] The Government must make greater efforts to prepare measures more quickly, so that this House can debate and decide upon the most significant measures at the earliest possible point. The use of made affirmative statutory instruments under the urgency procedure gives rise to particular concern.

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