On 15 December 2021, the House of Lords is due to debate motions to approve several statutory instruments relating to public health, including:
- Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021
- Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 6) Regulations 2021
- Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021
The Government introduced the instruments 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 instruments have not yet been considered by the House of Lords Secondary Legislation Scrutiny Committee. The House of Commons is due to debate motions to approve the instruments on 14 December 2021.
What are the new measures?
Face coverings in most indoor public settings
From 10 December 2021, the Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021 (the new face coverings regulations) expands the legal requirement to wear face coverings to most indoor public settings, unless an individual is exempt.
This extended a previous requirement to wear face coverings in shops and on public transport, as introduced by the Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021 (the principal regulations), that came into force on 30 November 2021.
The new face coverings regulations have expanded the principal regulations to include most other public venues, including places of worship, cinemas, and theatres. This requirement has not been extended to hospitality settings such as gyms, restaurants and nightclubs.
The Government laid the new face coverings regulations on 9 December 2021. They came into force on 10 December 2021. The regulations are scheduled to expire at the end of 26 January 2022.
Daily rapid testing for contacts of Covid-19 cases
From 14 December 2021, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 6) Regulations 2021 (the self-isolation (No. 6) regulations) would remove the legal duty for contacts of suspected or confirmed Omicron cases to self-isolate.
This would amend an earlier instrument that came into force on 30 November 2021 and required all close contacts of suspected or confirmed Omicron cases to self-isolate for 10 days, regardless of their age or vaccination status.
In the explanatory memorandum to the self-isolation (No. 6) regulations, the Government said that contacts will instead be strongly advised to take a daily lateral flow test for seven days. If the results are negative, individuals are advised to remain cautious such as reducing social contact and avoiding large gatherings.
The Government laid the instrument on 13 December 2021. The regulations are scheduled to expire at the end of 24 March 2022.
From 15 December 2021, the Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021 would introduce mandatory Covid-status certification requirements for entry into certain large venues and events.
Adult visitors would be required to show either full-vaccination status or have proof of a negative PCR or lateral flow test result within 48 hours of entry. People who have proof of a medical exemption from vaccination or through participation in a relevant clinical trial would be exempt from the regulations. Venues and events include:
- all nightclubs and other venues open after 1am with alcohol, music and dancing;
- indoor events with 500 or more attendees where those attendees are likely to stand or move around during the event, such as large receptions, and specifically live music venues, concert halls and indoor sports stadia;
- outdoor settings with 4,000 or more attendees where those attendees are likely to stand, or move around during the event, such as outdoor festivals, and specifically outdoor sports stadia; and
- any settings with 10,000 or more attendees, such as large sports and music stadia.
A person can demonstrate their Covid-status by using the NHS Covid-pass or overseas equivalent.
The Government laid the instrument on 13 December 2021. The regulations are scheduled to expire at the end of 26 January 2022.
Exemption from self-isolation for close contacts who have been fully vaccinated outside the UK
The Government has also introduced changes to the self-isolation requirements for close contacts who have been vaccinated outside of the UK. From 9 December 2021, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 5) Regulations 2021 (the new self-isolation regulations) extends the self-isolation exemption to certain people who have been vaccinated abroad.
A person vaccinated outside the UK will not have to self-isolate when they have been identified as a close contact of a Covid-19 case if their vaccination status is recognised by England’s international travel rules. The international travel rules recognise vaccines that have been administered overseas and regulated by certain international organisations, including the European Medicines Agency. The exemption does not currently apply to contacts of confirmed or suspected Omicron cases. Previously, only individuals who had received vaccines approved by the Medicines and Healthcare Products Regulatory Agency in the UK were exempt from the self-isolation requirement.
The Government made these changes via the new self-isolation regulations. The Government laid the instrument on 8 December 2021. Most of the regulations came into force on 9 December 2021. However, one provision would come into force on 18 January 2022, regulation 2(3)(a)(iii). This provision would clarify the self-isolation exemption for close contacts who are medically unable to be vaccinated. Currently, a close contact can be exempt from self-isolation if they are unable to be vaccinated for clinical reasons. However, existing regulations do not clarify how this exemption should be obtained, including the type of evidence required. Regulation 2(3)(a)(iii) would clarify what evidence would be required for a person to prove that they are subject to this exemption. Evidence would include a letter issued by the NHS in response to an NHS Covid pass medical exemptions application.
The new self-isolation regulations are scheduled to expire at the end of 24 March 2022.
Working from home guidance
Why have the measures been introduced?
The introduction of these measures follows concerns about the increased spread of the Covid-19 Omicron variant in the UK.
On 8 December 2021, Prime Minister Boris Johnson announced England’s move to ‘plan B’ of its Covid-19 response. ‘Plan B’ refers to the Government’s contingency plan published in its Covid-19 Response: Autumn and Winter Plan in September 2021 (the ‘autumn and winter strategy’). Plan B contains several contingency measures that the Government planned to introduce if data suggested that the NHS was likely to come under sustained pressure.
In a press announcement made by the Prime Minister on 8 December 2021 about England moving to plan B, the Government confirmed that new measures would come into force whilst more data on vaccine efficacy and disease severity of the Omicron variant is assessed. Early analysis by the UK Health and Security Agency (UKHSA) suggests that the Omicron variant could be more transmissible than other variants. It said that early estimations signalled a “significantly lower” vaccine effectiveness against the Omicron variant, with this increasing to a “moderate to high” effectiveness in the early period after a booster jab.
On 12 December 2021, the Prime Minister warned that a “tidal wave” of Omicron cases were expected across the UK. As such, the deadline for offering a booster jab to all eligible adults in England over the age of 18 would be brought forward from the end of January 2022 to the end of December 2021. The Government also raised the UK’s Covid-19 alert level from level 3 to level 4 following a recommendation from the UK chief medical officers and NHS England’s National Medical Director.
As of 13 December 2021, the UKHSA announced that the total number of confirmed Covid-19 Omicron cases in the UK was 4,713.
What has the reaction been?
During the House of Commons Covid-19 update on 8 December 2021, the Shadow Secretary of State for Health and Social Care, Wes Streeting, said that the Labour Party would “support the measures in the national interest”. However, he accused the Government of undermining public compliance in the measures following allegations of a No. 10 Christmas party in December 2020. The Secretary of State for Health and Social Care, Sajid Javid, said that the measures would provide “the best chance of saving lives and protecting our freedom over the next few weeks”.
During the House of Lords Covid-19 update on 8 December 2021, Baroness Thornton, the Shadow Spokesperson for Health, echoed the Labour Party’s support for the measures. She described the Omicron variant as a “clear threat”, and agreed that swift action was needed to limit its spread. Referring to daily contact testing, Baroness Brinton, the Liberal Democrat Lords Spokesperson for Health, and Lord Scriven (Liberal Democrat), sought confirmation from the Government about the accuracy of lateral flow tests. The Parliamentary Under Secretary of State for the Department of Health and Social Care, Lord Kamall, did not have the latest figure but believed that the accuracy was in “the very high 90’s”. Overall, Lord Kamall acknowledged that the measures would be “disappointing”, but assured the House that the Government had taken a wide-ranging view of the impact on the NHS, education, economy, life changes and mental health, in making these decisions.