On 25 March 2021, the House of Lords is due to hold a debate of up to five hours’ duration on the following:
- Lord Bethell to move that, for the purposes of section 99 of the Coronavirus Act 2020, this House takes note of the One Year Report on the Status of the Non-devolved Provisions of the Coronavirus Act 2020, published on 22 March 2021.
- Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021: Lord Bethell to move that the regulations laid before the House on 5 March be approved. 49th Report from the Secondary Legislation Scrutiny Committee. Instrument not yet reported by the Joint Committee on Statutory Instruments.
- Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021: Lord Bethell to move that the regulations laid before the House on 22 March be approved. Instrument not yet reported by the Joint Committee on Statutory Instruments.
Coronavirus Act 2020: One year on
The Coronavirus Act 2020 received royal assent on 25 March 2020. It contains powers to assist the Government and various public bodies with their response to the Covid-19 pandemic. The Hansard Society has noted that the Government has used powers in over 125 acts of Parliament, orders and/or retained EU regulations to lay over 400 coronavirus-related statutory instruments (SIs) over the past year. The Coronavirus Act 2020 was used as the basis for 21 of these. A majority of SIs subject to the most urgent procedure, including those introducing various levels of “lockdown”, were made under the Public Health (Control of Disease) Act 1984.
The Coronavirus Act 2020 includes provisions to facilitate continuing parliamentary scrutiny of the temporary powers it contains. For example:
- Section 97 requires the Government to report every two months on the status of the non-devolved provisions in the act. This report must be laid before Parliament and contain a statement that the secretary of state is satisfied that the status of provisions is appropriate. If the Government does not publish a report within a week of one being due, a minister must publish a statement explaining why.
- Section 98 stipulates that the House of Commons must have the opportunity to decline to renew certain temporary powers in the act at six-month intervals. (The House of Commons held a first debate on renewing the Coronavirus Act’s provisions on 30 September 2020).
- Section 99 provides that the Government must arrange for both Houses of Parliament to consider a ‘one-year status report’ if the act is still in force one year after royal assent. This takes the form of the sixth of the two-monthly reports provided for in section 97.
In line with section 99 of the act, the Government has scheduled debates in both the House of Lords and House of Commons on the one-year status report. Both debates are set to take place on 25 March 2021—the first anniversary of the Coronavirus Act 2020 receiving royal assent. Like in the House of Lords, the motion in the House of Commons is expected to be debated alongside others. These include motions relating to the six-monthly opportunity for that House to decline to renew the temporary provisions in the act and the extension of parliamentary proceedings during the pandemic.
One-year status report
The Department of Health and Social Care published its sixth two-monthly report/one-year status report on the Coronavirus Act 2020 on 22 March 2021. In this report, the Government said that it had decided to “expire a total of twelve sections [of the act] as they are no longer seen as necessary to respond to the pandemic”. These were listed as:
- Sections 8 and 9 (apply to UK): Emergency volunteering leave and compensation for emergency volunteers.
- Section 15 (applies to England and Wales): Local authority care and support.
- Section 24 (applies to UK): Extension of time limits for retention of fingerprints and DNA profiles.
- Sections 25–29 (applies to UK): Food supply provisions.
- Section 71 (applies to UK): Signatures of Treasury Commissioners.
- Section 79 (applies to England): Business Improvement Districts.
- Section 84 (applies to England): Postponement of General Synod elections.
The Government added that it intends to expire these sections by regulations brought forward after the Easter recess. It recommended the other provisions in the act be retained for now, save for three that it wished to suspend. These were listed as:
- Section 22 (applies to UK): Appointment of temporary Judicial Commissioners.
- Section 23 (applies to UK): Time limits in relation to, for example, urgent warrants under the Investigatory Powers Act .
- Section 58/schedule 2, part 2 (applies to UK and will be suspended in England): Allows directions to be issued under part 2 if it was believed death management was not being organised correctly.
Prior to this, the last report available had been the fifth two-monthly report published on 28 January 2021. This said that ten months on from the Coronavirus Act 2020 having received royal assent, the Government was confident that the act had “facilitated a fast and effective response to the Covid-19 outbreak”. This included in five key areas:
- increasing the available health and social care workforce;
- easing and reacting to the burden on frontline staff;
- supporting people, including through the job retention and income support schemes;
- containing and slowing the virus; and
- managing the deceased with respect and dignity.
The Government added that the “powers in the act, and the option for invoking restrictions quickly and flexibly remains vital […] The act continues to be a vital tool in our efforts to overcome the virus”.
In a report published in September 2020, the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published a report on parliamentary scrutiny of the Government’s handling of the pandemic. Although the committee was not convinced that other legislation such as the Civil Contingencies Act 2004 could have been used in response to Covid-19, it found fault with the level of parliamentary scrutiny afforded to the Coronavirus Bill in March 2020. The committee concluded that the Civil Contingencies Act could have been used as a “stop-gap” to allow more detailed scrutiny of the bill a year ago. This would have allowed more than the four days of scrutiny the legislation received before it received royal assent. In addition, the committee said:
The Coronavirus Act does not include the same strength of safeguards as the Civil Contingencies Act. The committee recommended that in future if bespoke emergency legislation is passed it should be given safeguards equivalent to those contained in the Civil Contingencies Act, such as regular renewal of powers.
Commenting on the role of the House of Commons in reviewing whether to renew the act’s temporary provisions at six-month intervals, the committee added:
The House has no power to compel only certain provisions to be expired. The motion is an “all or nothing” proposition. The committee concluded that the framework for parliamentary scrutiny of the Government’s approach to Covid-19 is inadequate […] The committee has recommended that the Government provide, for [the first six-month anniversary debate in September 2020], information relating to the original rationale for the temporary provisions in the Coronavirus Act, why those provisions are still justified and the evidence base for demonstrating those provisions are still effective.
The Government subsequently published an analysis on how the Coronavirus Act 2020 had helped its response to the pandemic in advance of the six-month anniversary debates in September 2020. In December 2020, in a response to the PACAC report, the Government said that it intended to provide an updated analysis ahead of the one-year status report debates.
On 22 March 2021, the House of Commons debated a petition signed by over 100,000 individuals calling for the Coronavirus Act 2020 to be repealed. Responding to the petition in October 2020, the Government said the act “gives us the powers we need to take the right action at the right time to respond effectively to the impact of the pandemic and should be seen as part of a wide range of public health measures designed to tackle the pandemic during its life cycle”.
Spring 2021 roadmap
On 22 February 2021, the Government published a roadmap setting out how it intended to go about easing the current lockdown in England. This stated that the “success of the vaccination rollout, alongside falling infections and hospitalisations, is paving the way for the safe and gradual lifting of restrictions”, but added that an assessment on whether to move to the next step of the roadmap would be subject to four tests at each stage. The four tests were:
- The vaccine deployment programme continues successfully.
- Evidence shows vaccines are sufficiently effective in reducing hospitalisations and deaths in those vaccinated.
- Infection rates do not risk a surge in hospitalisations which would put unsustainable pressure on the NHS.
- Our assessment of the risks is not fundamentally changed by new variants of concern.
Health protection regulations
The House of Lords is due to consider the Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021 as part of the debate on 25 March 2021. The instrument, made under the Public Health (Control of Disease) Act 1984, was signed into law and laid before both Houses on 5 March 2021. It came into force three days later. The regulations are subject to the made affirmative procedure, which means both Houses must approve them within a set time period for their provisions to remain in force.
- With effect from 8 March 2021, this instrument amended the all tiers regulations and the face coverings regulations to facilitate voting and the counting of votes in the forthcoming elections, and to allow two people to gather for the associated campaigning and nominations activities. The regulations add polling stations to the list of places where face coverings must be worn. Any non-exempt person who refuses to comply may be subject to a fixed penalty notice but may not be prevented from voting.
- The regulations also facilitate the 2021 census (which will take place on 21 March) by providing that community centres, which must otherwise be closed, may open to provide access to computers for completing census forms online.
- The instrument also expands the permitted reasons to leave home in Tier 4 to include outdoor recreation with a linked household or one other person in a public outdoor place, and allows wrap-around childcare activities for all children whose parents are going to work or seeking work.
- Finally, these regulations amend the all tiers regulations to require all travellers leaving the Common Travel Area from a port or airport in England to complete a form declaring their reason for travelling, and to present that form for inspection when required (subject to a fixed penalty notice of £200 for failure to comply).
The committee did not list the regulations as an instrument drawn to the special attention of the House.
House of Commons debate
The House of Commons considered the regulations in a delegated legislation committee on 17 March 2021. After explaining the purpose of the instrument, Jo Churchill, Parliamentary Under Secretary of State at the Department of Health and Social Care, indicated that new regulations to ease the existing lockdown would be introduced before the end of March:
The success of the vaccination roll-out, alongside falling infections and hospitalisations, is paving the way for a cautious and gradual lifting of restrictions. Before 29 March, we expect to lay a statutory instrument to replace the previous regulations with new provisions that enable the road map to come into force. It will be for debate and approval by Parliament before the Easter recess.
Speaking on behalf of the Labour Party, Justin Madders, Shadow Minister for Health and Social Care, said the opposition would not oppose the regulations. But he questioned the Government’s statement that they were urgent and choice of procedure in bringing them into force before parliamentary approval:
The first page of the regulations says that “the secretary of state is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid”. The minister will forgive me, because I have said this to her many times, but there is nothing in the regulations that I would class as so genuinely urgent that they had to be implemented without parliamentary approval first.
Mr Madders alleged that the Government had “got itself into a very bad habit” of equating the word “coronavirus” with the word “urgent” and that he would “continue to object [to use of the made affirmative procedure] until we get back to operating in the way that we should in a properly accountable and democratic system”.
The Government signed the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 into law and laid them before Parliament on 22 March 2021. They were made under the Public Health (Control of Disease) Act 1984; are set to come into force on 29 March 2021; and are set to expire at the end of 30 June 2021. The regulations are subject to the made affirmative procedure, which means they must be approved by Parliament within a set period to remain law until they are set to expire.
The Government has described these as the new “roadmap regulations” designed to “pave the way to the easing of all restrictions from 21 June”. The explanatory memorandum to the regulations states that they will revoke the ‘all tier’ regulations and replace these with a framework to “implement steps 1–3 of the Government’s roadmap out of lockdown in England”. The Government must review the need for the restrictions imposed by the regulations at least once every 35 days, with the first review due to take place by 12 April 2021.
- Debate on ‘Coronavirus Act 2020: Temporary Provisions’, HL Hansard, 28 September 2020, cols 27–98; and Debate on ‘Coronavirus Act 2020 (Review of Temporary Provisions)’, HC Hansard, 30 September 2020, cols 388–415
- House of Lords Library, ‘Debate on the temporary provisions in the Coronavirus Act 2020’, 23 September 2020
- House of Commons Public Administration and Constitutional Affairs Committee, Parliamentary Scrutiny of the Government’s Handling of Covid-19, 10 September 2020, HC 377 of session 2019–21; and Government Response, 9 December 2020
- Department of Health and Social Care, Two-monthly Report on the Status on the Non-devolved Provisions of the Coronavirus Act 2020, 28 January 2021
- HM Government, Covid-19 Response: Spring 2021, 22 February 2021, CP 398
This article was originally published on 22 March 2021. An update was made on 23 March 2021 following publication of the one-year status report and Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 referred to above.
Cover image by al_si on Pixabay.