On 28 September 2020, the House of Lords will debate a “take note” motion on the continued application of the temporary provisions in the Coronavirus Act 2020. This In Focus article explains why that debate is taking place and which powers and restrictions it covers. The article also summarises the recent House of Commons Public Administration and Constitutional Affairs Committee’s suggestions for areas that might be of interest to parliamentarians in reviewing the act.
Why is this debate happening?
At six-month intervals, starting from the date the Coronavirus Act 2020 entered into force, the Government is obliged to seek the House of Commons’ agreement to the continued use of certain provisions in the act. Under section 98 of the act, every six months a minister must move a motion in the House of Commons in the form “that the temporary provisions of the Coronavirus Act 2020 should not yet expire”. If the House of Commons rejects the motion then the Government has 21 days in which to make regulations terminating the use of these powers.
The first of these debates is scheduled to take place in the House of Commons on 30 September 2020. The act does not stipulate that such a motion must also be moved in the House of Lords, nor that the House of Lords must have a debate on the temporary provisions. However, a debate on the temporary provisions of the Coronavirus Act 2020 is scheduled to take place in the House of Lords on 28 September 2020.
Under section 97 of the act, the Government is also required to report to parliament every two months on the status of the non-devolved provisions of the act. The third of these reports was published on 23 September 2020 and sets out for each of the provisions whether it is force and the Government’s view as to whether it is still required.
Which of the provisions in the act does this motion apply to?
In addition to the six-monthly reviews described above, the Coronavirus Act is also subject to an overall sunset provision. Section 89 provides that the act will expire two years after the day on which it was passed. However, some sections are exempt from the two-year expiry. These sections are therefore not “temporary provisions” for the purposes of the six-monthly reviews under section 98.
Provisions for which a UK Government minister would have to seek consent from the Welsh Ministers, the Scottish Ministers or a Northern Ireland department to change are also not covered by the six-month reviews.
The provisions covered by the six-month review include those relating to:
- emergency volunteers (not yet in force);
- mental health and mental capacity (partially in force);
- NHS and local authority care and support;
- registration of deaths and still-births;
- investigatory powers;
- fingerprints and DNA profiles;
- food supply (not yet in force);
- inquests;
- schools, childcare providers etc;
- statutory sick pay;
- pensions;
- power to suspend port operations;
- powers relating to potentially infectious persons;
- powers relating to events, gatherings and premises;
- courts and tribunals: use of video and audio technology;
- powers in relation to bodies (transportation, storage and disposal of dead bodies etc);
- signatures of Treasury commissioners;
- up-rating of working tax credit;
- local authority meetings;
- business improvement districts;
- residential tenancies (protection from eviction);
- business tenancies (protection from forfeiture);
- General Synod of the Church of England; and
- provisions relating to commencement, power to suspend and revive provisions of the act, expiry, regular review etc.
It is not possible for the motion to be rejected only in respect of some of these provisions.
A briefing by the Institute for Government provides further information on the various sections of the act.
Do the Coronavirus Act provisions cover the lockdown restrictions (limits on people’s movement, who they can meet up with, etc)?
Most of the restrictions imposed on individuals to slow the transmission of Covid-19 have been made under the Public Health (Control of Disease) Act 1984. This act allows ministers to make regulations imposing restrictions or requirements on persons, things, or premises in the event of a threat to public health. It also provides that in an emergency such regulations can be made under the ‘made affirmative’ procedure. This means they take effect before being scrutinised in Parliament.
Examples of restrictions imposed using the powers in the Public Health (Control of Disease) Act 1984 include:
- the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which require people to self-isolate upon entering England from countries outside the common travel area (with certain exceptions);
- the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020, which prohibit gatherings of more than six people in England (with certain exceptions); and
- the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, which require people to wear a face covering in shops and other places in England (with certain exceptions).
The provisions under the Coronavirus Act 2020 that could restrict personal liberty are those relating to potentially infectious persons and to events, gatherings and premises:
- Section 51 of the act gives public officials powers to test, isolate and detain a person where they have reasonable grounds to think that the person is infected. Someone who refuses to comply commits an offence, which is punishable by a fine. The details are set out in schedule 21.
- Section 52 gives ministers the power to restrict or prohibit gatherings or events, and the power to close or restrict access to premises if doing so would help prevent the transmission of Covid-19 or facilitate the most appropriate deployment of medical or emergency personnel and resources. The details are set out in schedule 22.
What post-legislative scrutiny of the act has there been?
The House of Commons Public Administration and Constitutional Affairs Committee reported on the Government’s approach to Covid-19 legislation and the framework for parliamentary scrutiny on 10 September 2020. The committee argued that because detailed scrutiny of the Coronavirus Bill was not possible, “it is therefore very important that Government is held to account for how it uses and justifies the continued application of the act”.
The committee also included in its report “potential areas of interest for parliamentarians” when considering the Coronavirus Act in its first six-month review. These are based on submissions to the committee, and the committee notes that it has not itself come to a view on them. These areas are health provision and powers of detention and dispersal.
Health provision
NHS Providers suggested that the flexibility of measures in the Coronavirus Act would help the NHS respond to the backlog of planned care that has built up while also helping the NHS in the event of a second wave of infections.
The mental health charity Mind urged the Government to remove from the Coronavirus Act the temporary powers to change the Mental Health Act. Mind also expressed concerns about the temporary suspension of the local authority duty to provide adult social care, which they argued could significantly affect “access to vital social care support to people with mental health problems”.
Powers of detention and dispersal
The civil liberties organisation Big Brother Watch argued to the committee that schedule 21 of the act, relating to detention of potentially infectious persons, should be repealed. This is because at the time of the July status report 100 percent of prosecutions made under schedule 21 had been unlawful. In addition, they argued that the powers in schedule 22, relating to events and gatherings, should be repealed because they had never been used. Restrictions of this type have been introduced under powers in other legislation, primarily the Public Health (Control of Disease) Act 1984, instead.
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