This article was updated on 30 November 2020 to include links to the regulations published by the Government on that date.
On 1 December 2020, the House of Lords is due to debate “motions to approve regulations related to public health”.
On 30 November 2020, the Government published the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (the Tiers Regulations). These regulations provide for both the revised tiers for England and for the implementation of ‘Christmas bubbles’ (referred to as ‘linked Christmas households’ by the regulations).
The Government also published the Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020 (the Local Authority Enforcement Regulations) on 30 November 2020. In its Winter Plan the Government said it would legislate to “enhance the tools” available to local authorities for enforcement. This included “streamlined powers to issue improvement and restriction notices to businesses that are breaching COVID-secure rules, with the ability to compel the immediate closure of a premise that is not complying with COVID-secure regulations”. The explanatory memorandum to the regulations state:
The policy aim is to provide greater enforcement of safety measures in businesses. Following engagement with local authorities, the instrument is designed to give additional power to assist in the control of the spread of coronavirus. These additional powers enable local authorities to quickly request improvement, close or restrict unsafe activity in premises that do not meet Covid-19-secure requirements listed in regulation 2 of this instrument.
On 30 November 2020, the Government also published ‘Analysis of the health, economic and social effects of COVID-19 and the approach to tiering’, a document which:
Sets out the evidence and analysis in relation to coronavirus (COVID-19) and the health, economic and social effects of the Government’s tiered approach.
Both sets of regulations were made on 30 November 2020 and come into force on 2 December 2020. The regulations will cease to have effect at the end of a period of 28 days (beginning on the day on which they were made) unless during that period they are approved by a resolution of each House of Parliament. Regulation 15(1) of the Tiers Regulations states that the regulations would “expire at the end of 2nd February 2021”. Regulation 12(1) of the Local Authority Enforcement Regulations states that part 2 would expire at “the end of the period of six months beginning with the day on which it comes into force”. The House of Commons is expected to consider the regulations on 1 December 2020.
This Lords Library In Focus article focuses on the revised tiers for England.
Winter Plan and revised tiers in England
On 23 November 2020, the Government announced its new Winter Plan which sets out its approach to ending the national restrictions on 2 December 2020 and managing Covid-19 through the winter. The Winter Plan stated that the new tiers would be applied to areas “from 2 December, based on analysis of the most up-to-date information”. Decisions would be based primarily on five key indicators:
- Case detection rates in all age groups.
- Case detection rates in the over 60s.
- The rate at which cases are rising or falling.
- Positivity rate (the number of positive cases detected as a percentage of tests taken).
- Pressure on the NHS, including current and projected occupancy.
The Winter Plan stated that the weighting of the individual indicators would be based on the situation in individual areas and it was not possible to set thresholds for them:
The Government will need to maintain some flexibility to weight these indicators against each other as the context demands. For example, hospital capacity in a given area will need to be considered in the light of the capacity in neighbouring areas and the feasibility of moving patients. Case detection rates will need to be weighted against whether the spread of the virus appears to be localised to particular communities. Given these sensitivities, it is not possible to set rigid thresholds for these indicators, as doing so would result in poorer quality decisions.
However, the Government said it would be “transparent about the decisions that it takes and make available the evidence informing those decisions”. The movement of areas up or down tiers would “also be informed by broader economic and practical considerations, such as the anticipated movement of individuals between areas”.
Announcing the plan in the House of Commons on 23 November 2020, the Prime Minister, Boris Johnson, said that the tier system would now be a uniform set of rules and “we will not have negotiations on additional measures with each region”. Mr Johnson also said that the Government had “learnt from experience” and there would be differences compared to the previous tiers:
- Closing time for hospitality would be moved to 11pm with last orders at 10pm.
- In tiers 1 and 2 spectator sports and business events both inside and outside could resume, with capacity limits and social distancing.
- The enforcement abilities of local authorities would be strengthened, “including specially trained officers and new powers to close down premises that pose a risk to public health”.
The allocation of areas to the revised tiers was announced on 26 November 2020. The Government has also published information alongside a written statement which sets out the rationale behind the allocations. BBC News has observed, based on its analysis, that “713,573 people live in the new tier one areas, 32.2 million in tier two, and 23.3 million in tier three”. This compared with “23.5 million in tier one pre-lockdown, 24 million in tier two, and 8.7 million in tier three”.
Speaking in the House of Commons on 26 November 2020, Matt Hancock, the Secretary of State for Health and Social Care, stated that the majority of England had been placed in tier 2 but a “significant number” of areas had been moved to tier 3. However, he expressed hope that more parts of England would be able to move to tier 1 in time. He argued that “the more people stick to the rules, the quicker that will happen”.
Mr Hancock said that the measures would be reviewed on 16 December 2020 and then regularly afterwards. Following questions from some MPs about the regularity of reviews, he said MPs could “reasonably take” it to mean weekly:
[We] will review the tiers in a fortnight and then regularly, which [Members] can reasonably take to be weekly. We have a weekly cycle of meetings, with the chief medical officer chairing a meeting, typically on a Tuesday. I then chair a meeting on a Wednesday for an announcement on Thursday of any change to the tiers.
Overview of the revised tier system
The Government has said that the new tier structure will be “strengthened compared to the previous tiers” to prevent infection numbers growing again. It cited social contact as a mode of transmission and argued that it was “right” to target the strongest measures in areas where the virus is most common, or where infection rates were increasing faster. The aim of the tiers was to ensure that different areas had appropriate measures to slow transmission:
The Government is committed to ensuring the right levels of intervention in the right places to manage outbreaks, suppress the virus and keep R [the reproduction number] below 1.
A written statement on 26 November 2020 set out the changes to the tiers as follows:
- In tier 1, the Government will reinforce the importance that, where people can work from home, they should do so.
- In tier 2, hospitality settings that serve alcohol must close, unless operating as restaurants. Hospitality venues can only serve alcohol with substantial meals.
- In tier 3, hospitality will close except for delivery, drive-through and takeaway, hotels and other accommodation providers must close (except for specific exemptions, such as people staying for work purposes, where people are attending a funeral, or where they cannot return home) and indoor entertainment venues such as cinemas, theatres and bowling allies must also close. Elite sport will be played without spectators. Organised outdoor sport can resume, but the Government will advise against higher risk contact sports.
The statement also said that the Government had increased funding through the ‘Contain Outbreak Management Fund’. The fund would provide monthly payments to local authorities “facing higher restrictions”. On 25 November 2020, HM Treasury’s Spending Review 2020 stated that:
Total payments from the Contain Outbreak Management Fund from December could reach up to £903 million depending on levels of local restrictions and their duration.
A “major community testing programme” would also be launched “honing in on the areas with the greatest rate of infection”. The programme would be open to local authorities in tier 3 areas in order to help them move out of the strongest restrictions as quickly as possible.
On 24 November 2020, the Cabinet Office published guidance on household mixing over Christmas as part of a ‘Christmas bubble’. This followed agreement between the UK Government and the devolved administrations.
Christmas bubbles would be limited to between 23 and 27 December. However, people travelling to or from Northern Ireland would be able to travel on the 22 and 28 December.
They would be subject to certain restrictions, including the following three “main rules” on forming them:
- You can only be in one Christmas bubble.
- You cannot change your Christmas bubble.
- Your Christmas bubble should not include people from more than three households.
The UK Government has indicated that Christmas bubbles would be underpinned by regulations: “the rules on forming and using a Christmas bubble will be the law”. The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 provide for both the revised tiers for England and for the implementation of ‘Christmas bubbles’ (referred to as ‘linked Christmas households’ by the regulations).
The devolved administrations have also published information on their respective websites:
- Scottish Government, ‘Coronavirus (Covid-19): Guidance for festive period’, 26 November 2020
- Welsh Government, ‘Making a Christmas bubble with friends and family’, 24 November 2020
- Northern Ireland Executive, ‘Foster and O’Neill signal Christmas arrangements’, 24 November 2020
Reaction to the new tiers
Responding to Matt Hancock’s statement on 26 November 2020, Jonathan Ashworth, Shadow Secretary of State for Health and Social Care, said that the Labour Party understood why tough restrictions were still needed. However, he added that millions of people “trying to survive in the second lockdown will soon be forced to endure further local lockdown restrictions”. Mr Ashworth suggested that interventions would succeed “when made in tandem” with local communities. He also said that pubs, restaurants and entertainment venues would need “substantial financial support” to get through the Christmas period.
The chair of the Local Government Association’s community wellbeing board, Ian Hudspeth, said that the social and economic costs of Covid-19 restrictions had been significant. He argued that it was good that the revised tiers would be regularly reviewed, but councils still needed clarity on how their areas could move between tiers. Mr Hudspeth stated areas needed reassurance that work that had been successful in reducing infection rates would result in restrictions being eased as quickly as possible. He also said that it was important that the Government worked with local areas to scale up local contact tracing “with better data sharing to allow positive tests to be followed up, facilitate targeted testing at scale and coordinate the roll-out of any Covid-19 vaccine”.
Kate Nicholls, chief executive of the trade association UKHospitality, said “the new tier system will deliver another huge blow to hospitality, with 98% of trade now happening in tier 2 or 3 regions”. She said that if the restrictions lasted for the whole of December an estimated “£7.8 billion worth of trading is set to be wiped out, compared to 2019”. Ms Nicholls also said that she had not seen evidence hospitality venues were “a problem area in terms of infection, so it seems unfair and arbitrary that hospitality is being dealt such a harsh hand”. She said without further financial support for the sector “we are looking at huge numbers of job losses, businesses permanently closed and the landscape of hospitality in this country fundamentally degraded for the foreseeable future”.
Recent press coverage also includes reaction from local leaders and politicians:
- BBC News, ‘Covid-19 tiers: Almost all of England facing tough virus rules’, 26 November 2020
- BBC News, ‘Covid tiers: Boris Johnson says measures will bring clarity’, 27 November 2020
- Peter Walker and Simon Murphy, ‘Covid tiers: Large parts of England in tier 3 restrictions after lockdown’, Guardian, 26 November 2020
- Chris Smyth, ‘Johnson rejects MPs’ demands for more localised tier systems’, Times (£), 26 November 2020
The regulations providing for the revised tier system for England were made on 30 November 2020 by the ‘made affirmative’ procedure. The regulations come into force on 2 December 2020.
Given the timings, neither the House of Lords Secondary Legislation Scrutiny Committee nor the Joint Committee for Statutory Instruments has reported on the regulations as of 30 November 2020. The standing orders of the House of Lords say that an affirmative statutory instrument should not be debated in the Lords before the Joint Committee for Statutory Instruments has reported on it. As the debate in the Lords is scheduled to take place before such a report is published, the Leader of the House of Lords, Baroness Evans of Bowes Park, tabled a motion on 30 November 2020 to suspend the relevant standing order. The motion was agreed by the House.
The House of Commons is expected to consider the regulations on 1 December 2020
The House of Lords Library has published briefings on both the second lockdown in England and on the previous three-tier system:
- House of Lords Library, ‘Coronavirus: November lockdown for England’, 3 November 2020
- House of Lords Library, ‘Covid-19 local alert levels: Three-tier system for England’, 13 October 2020
The House of Commons Library have published a briefing looking at how Covid-19 public health restrictions are implemented by the Government, and Parliament’s role in scrutinising the regulations:
- House of Commons Library, ‘Coronavirus: Parliamentary scrutiny and lockdown regulations’, 6 October 2020
Cover image by Belinda Fewings on Unsplash.